$11 Million Verdict for Gibson’s Bakery stands: Judge denies Oberlin College motion for a mistrial
Also, court rules jury cannot see college blast email criticizing the jurors, and that jury will get to decide whether to authorize the court to award attorney’s fee to the plaintiffs, which could add millions.
With the compensatory damages verdict of $11.2 million having been rendered last Friday, the parties in Gibson’s Bakery v. Oberlin College are now into the punitive damages phase.
But in a civil trial that has gone on much longer expected, the jury never saw the courtroom today as the judge had to rule on about a half-dozen motions filed by Oberlin College.
The motions sought to restrict the information the jury could hear in the punitive phase, which could add an up to extra $22.4 million to the verdict the jury gave last week against the college and its Dean of Students Meredith Raimondo.
The motions were all filed at the last minute, and Gibson’s attorney Lee Plakas was quite angry with the tactics, calling it “a total disregard for the jury, who gets called into court again to sit it out for another day. There was plenty of time to file these, and decided without having the jury called in, but Oberlin College thinks the jury sitting and waiting is not a problem for them.”
Jury Will Not See Blast Email
In what might be construed as a victory for the defendants, Judge John R. Miraldi ruled that in deciding a punitive amount (if any), the jury cannot be presented with an email blasted out to alums immediately after the verdict last week. Part of the email by Donica Thomas Varner, Oberlin College’s Vice President, General Counsel & Secretary, sent to thousands of alumni in the United States and around the world, said the following:
“We are disappointed with the verdict and regret that the jury did not agree with the clear evidence our team presented.” …
“Neither Oberlin College nor Dean Meredith Raimondo defamed a local business or its owners, and they never endorsed statements made by others. Rather, the College and Dr. Raimondo worked to ensure that students’ freedom of speech was protected and that the student demonstrations were safe and lawful, and they attempted to help the plaintiffs repair any harm caused by the student protests.”
The Gibson lawyers wanted to not only present the jury with the email as evidence of “malice,” but to also bring in Varner to testify via subpoena to the jury in the punitive phase. However, the judge ruled the jury would get neither the email nor the testimony of the general counsel.
Owen Rarric, an attorney for the Gibson’s, argued that the email was valid because the “jury will be deciding based on the deterrence and punishment they will exact on the school,” and that “this [email] is directly relevant to the issue of malice and the jury can determine the amount award to prevent future malicious conduct.”
Lee Plakas added that “Oberlin College just doesn’t get it and doesn’t accept that anyone else’s decisions is right except their own.”
The defense claimed in its court motion that the email was not relevant and would needlessly inflame the jury:
The conduct underlying all of these claims, as set forth at trial, spanned from November 10, 2016 (the first day of the protest) through late January 2017 (when Oberlin College resumed its daily orders from Gibson’s Bakery). The Trial Update is irrelevant to actual malice, which is required for an award of punitive damages, as the Trial Update comes two-and-a-half years after the tortious conduct that formed the basis of the jury’s verdict. In other words, the Trial Update is not relevant because nothing in the Trial Update has “any tendency to make the existence of any fact that is of consequence to the determination of” actual malice “more probable or less probable than it would be without the evidence.” Evid.R. 401.
Put simply, what relevance does an email sent by Oberlin College’s General Counsel, Vice President and Secretary to Oberlin College alumni—two-and-a-half years after the tortious conduct that lead to the jury’s finding of liability—have to actual malice? None. Thus, evidence on the Trial Update should be precluded from trial.
* * *
As discussed, certain news outlets have manipulated the Trial Update to suggest that Defendants have somehow disrespected and rejected the jury’s verdict. As the jury has been instructed not to read news postings and editorials about this case, so too should Plaintiffs be prevented from parroting the themes of those news postings and editorials to incite the jury into believing that it has been belittled in the Trial Update. The only reason Plaintiffs seek to introduce the Trial Update is to inflame the jury’s emotions and maximize a potential punitive damages award. Thus, evidence of the Trial Update should be excluded, as Defendants stand to be unfairly prejudiced by Plaintiffs’ improper use of the document.
Judge John R. Miraldi held that “this was a letter sent by the Oberlin general counsel after the verdict. We are talking about the actions of the defendants that demonstrated malice. What we will use is only what was litigated in court.”
Motion for Mistrial Denied
In addition to his ruling that the email could not be admitted, the judge ruled favorably for the Gibson team in most of the other mostly procedural matters. The Oberlin College lawyers claimed the court had not separated the “compensatory” damages in the verdict between the Gibson family members and their business, and thus, in their argument, the jury could not figure out the punishment phase with such wrongful jury instructions from the court.
Oberlin College attorney Ronald D. Holman called the lack of a proper “breakdown of damages per claimant by claim” was for Oberlin College, an “incurable legal quagmire.” That line drew some giggles from the packed courtroom, especially from friends of the Gibson family who have been in this Ohio courtroom since early May.
The judge ruled against the motion for a “mistrial”:
Attorney Fees Could Be In Play
The Court also ruled that the jury could designate whether the court could award attorney’s fees. As we understand the procedure, the jury will get to determine whether to give the judge the power to award the Gibsons attorney’s fees. If the jury so authorizes, the amount will be up to the judge. It’s unclear to us whether the judge could award the amount of the contingent fee (which presumably is the basis on which the plaintiffs’ lawyers took the case), because if so, that could add many millions to the ultimate judgment. Even at an hourly rate, it still would be substantial.
What’s Next
The evidence presented tomorrow will be by the plaintiffs about how Oberlin College acted with malice. The attorneys would not tip their hand as to what the evidence of malice might be, but did indicate they would focus on evidence already presented to the jury in the trial.
One would suspect the jury might see the email again tomorrow from Oberlin College Dean of Students Meredith Raimondo, where she wrote to colleagues, in relation to criticism of the college’s handling of the matter, ““Fuck him … I’d say unleash the students if I wasn’t convinced this needs to be put behind us.”
Daniel McGraw is a freelance writer and author in Lakewood, Ohio. Follow him on Twitter @danmcgraw1
WAJ Adds: We will be on Verdict Watch as soon as the jury gets the punitive damages case. As soon as there is a verdict, Dan will contact me and I will post it. As with the compensatory verdict, you will be the first to know, other than people in the courtroom.
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Comments
Nice surprise, about the jury being able to award attorney’s fees.
or more accurately, the jury can designate whether the Court CAN award attorney’s fees. So by my reading, both the jury and judge would have to award attorney’s fees in that order, for them to be awarded.
Just curious, how would the unlikely awarding attorneys’ fees even work?
Would the judge rule that Oberlin had to pay an additional amount equal to the contingency or would he determine a billable hour amount and offset the contingency?
If awarded to plaintiff counsel it wouldn’t offset what Gibson’s owe, but if awarded to Gibson’s eould it increase the amount of the award?
We know without proof of mischief by plaintiff attorney against client the contingency can’t be set aside, how would it work?
The jury can order the award of attorney’s fees if a finding of malice is made, as in this case. If the jury awards attorney’s fees, the judge orders the plaintiff’s counsel to provide a record of billing to the court which is also provided to the defense. The judge and defense will examine the billing record to look at hours billed, hourly rates charged, etc. (or the amount and conditions of contingency fees negotiated) and make a decision of what is both fair and pertinent to ensure the plaintiff’s counsel is not attempting to pad or overcharge against the defendant. Parties may have verbal arguments to contest various points, but once the jury rules that defense has to pay legal fees, that is not part of the argument as to how much should be paid by the defense.
“Fuck him … I’d say unleash the students if I wasn’t convinced this needs to be put behind us.”
I know that every time I read that quote I want to add a million dollars.
Me too. And I’m up to 20 million.
In this case, a cap on punitive awards is a shame. Surely Oberlin College deserves to be relieved of about have of their endowment.
Stopping at half is arbitrary.
“Surely Oberlin College deserves to be relieved of their endowment.”
FTFY!
😎
I am the same. I also find the choice of words to be interesting. Some nose-in-the-air, credentialed person living the hot-house existence of academia, using street language.
“Fuck him … I’d say unleash the students if I wasn’t convinced this needs to be put behind us.”
Isn’t this incriminating evidence that belongs in the hearing? She is explicitly revealing that Oberlin has the power to “unleash” (or restrain) the students to further her own (or Oberlin’s) objectives. Judge and jury don’t agree with their arguments? Release the hounds!
Then there is this :
“The defense claimed in its court motion that the email was not relevant and would needlessly inflame the jury.”
So the jury has no right to be outraged by the evidence? Apparently, being human is a disqualifying consideration for serving on a jury. Law is only to be considered by dispassionate robots. BTW, those rioters wern’t exactly dispassionate either.
I believe “unleash the students” is already in evidence from the compensatory damage trial and can be used again.
The post-verdict statement from Oberlin cannot be used in the punitive damages trial.
It seems to me, Phil, that the jury was eleven million full of human.
I hope to see 33.6 million plus attorney fees.
I’m up to $33.6 million.
$33,635,000. Don’t leave out the value of the business.
“$35,000.”
A new universally-understood term for stupidty enters legal jargon.
Dan thank you for your coverage of this trial. Great job.
THIS is why ordinary Americans are sick of the elitist attitudes of those who think they are smarter than we are, and therefore should be in control. Watch that wish for violence, fruit loop!
Disappointing but understandable why the judge didn’t allow the blast email. I do hope Gibson’s wins attorney’s fees, that way they can use more of the money awarded to them towards rebuilding their lives and business.
Judge has been pretty good at not allowing reversible errors that could gain traction in an appeal.
IANAL, I do not know Ohio law.
But the two words, punitive damages, would seem to be not only punishment for what somebody did back when, but “encouragement” to not do same or similar in the future. “Encouragement” of the deputy serving seizure warrant type of “encouragement”.
In that case, the top lawyer of the university, titled both VP and General Council, indicating both they did nothing wrong and bald assertions of innocence (in the face of witnesses, written works by the purportedly damaging parties, and video, all disputing those bald assertions) constitute overwhelming evidence of innocence….
Well in that case, the General Council’s current words indicate that as an apparent “statement against interest”, he and the university as a whole, have learned nothing, and see nothing in their behavior that would have to be changed in the future, and are earning, now, maximum punitive damages in the hopes that the University board will fire as many of those who refuse to learn any lesson from this except for perhaps “don’t get caught”.
I like the fact that Oberlin argued that showing the blast email would “inflame the jury’s emotions”. Gee, maybe you shouldn’t have written it in the first place?
There was plenty of time to file these, and decided without having the jury called in, but Oberlin College thinks the jury sitting and waiting is not a problem for them”
This above everything else pisses me off. As a juror my time means so little to these selfish pricks that I’d be brought in for nothing. They could have gone fishing, enjoyed the day but nope, lawyers have to treat them like cattle.
They should be thanking Jesus Christ that I’m not on that jury.
Here is an interesting question.
Let us say the students riot and burn down Gibson’s bakery.
Could Gibson again sue Oberlin for the letter?
Yes in that case if they could show a connection to the hypothetical burning down of the bakery, then I am sure it would be admissible.
No, because that would be the students’ doing, not the college’s. Remember, the idea that this verdict makes the college responsible for the students’ misdeeds is a lie that the college is spreading. Don’t fall for it. The college is responsible only for what it itself has done.
Let us not forget that this entire trial was about compensating the Gibsons for their loss and suffering. To me, that has been achieved, with the “legal” restoration of their good name, and money to either allow the business to weather the bad times, or to pack up and move onto a more hospitable place.
The second phase, the punitive damages, is a separate matter. It is to send a message that the college is also responsible for acts in the future, and to discourage this, they are likely going to get a message about the ramifications of doing this again. What we are still missing here is an apology. Sadly, I don’t think that any amount will change that. I work with addicts. The mindset of these SJWs is scarily similar. Righting the world is their fix. Lack of accountability and external blame for everything, especially their precious feelings, is what dominates their focus and purpose. I still have good feelings about my time there and I am saddened to see where they have gone recently. It is like watching an old girlfriend slowly go insane. And I have seen nothing in the last 2-1/2 yrs which tells me that they are even close to coming to terms with the path that they are on. That email to the alumni. With the story now breaking through and with the story being different than their take, we might be at the point where the alumni (read parents) are going to take the tough love route. And that might mean the end of Oberlin. They are not self-sustaining, and much less close to that today than last week. The alternative is to let an out of control force continue on with its path of misguided destruction. We don’t need to waste time and resources wishing bad on Oberlin. They will take care of that on their own.
It will be interesting to see if there is enough momentum for a grass-roots coalition to retake control of the college. Of course, the first action would be to see who is in control. Like most mobs, the boss rules until their actions results in a lowering of lifestyle for the underlings. Will the faculty strike to demand change? They are likely to see a 5-10% hit in their ranks over this. Will there be shakeup in the board if poor guidance on their part is responsible for how this went down? President Ambar inherited it, but she still had 1-1/2 yrs to exert some authority and ask why this was still happening. And if she didn’t, I guess that makes her part of the ongoing problem. This will happen again, because without contrition, it is still in their nature.
I’d say Ambar owns this case now. Krislov was in charge when it happened, but Ambar could have tried to settle, could have released a statement that Gibson’s isn’t racist, but did none of that and seemed onboard with the existing mindset.
Maybe that’s why she was hired to the job. Anyway it’s hers, and mistakes now are hers.
To believe Oberlin College’s racism claims against Gibson’s Bakery, you would have to believe one or more of the e following:
a. Gibson’s only watched Black students to catch shoplifters.
b. Gibson’s only ever caught Black students shoplifting.
c. Only Black students shoplift.
d. White students are smarter and therefore don’t shoplift.
e. White students who shoplift are smart enough not get caught.
I hope that Oberlin College has to raise tuition enough that students will choose to go elsewhere resulting in the demise of the school.
From the school’s web site:
A Presbyterian minister and a missionary founded Oberlin in 1833. The duo, the Rev. John J. Shipherd and Philo P. Stewart, became friends while spending the summer of 1832 together in nearby Elyria. They discovered a mutual disenchantment with what they saw as the lack of strong Christian principles among the settlers of the American West. They decided to establish a college and a colony based on their religious beliefs, “where they would train teachers and other Christian leaders for the boundless most desolate fields in the West.”
Their actions leading up to and during this lawsuit, show they no longer are carrying out their founders’ vision.
Seeing the picture of the student protestors painfully reminds me of the mind-numbed lemmings our colleges and universities are graduating. This is beyond pitiful. Our country is in peril because of this.
I actually don’t like running down Oberlin. Even if it did eventually would produce the TV series “Girls.”
My alma mater is UCSB. University of California, Santa Barbara. Or, as some like to put it, University of California Surfing Branch.
I would say that nobody there could surf. There were some, but they didn’t learn how to surf there. The channel islands meant there were no big waves.
Look at the place.
https://i.pinimg.com/736x/65/47/95/654795c70d765487ad6214ac8350bbd5.jpg
This is probably the only college/university I could have graduated magna cum laude. When I went back in the 80s it was in the top ten party schools in the country. Except for a few people, the vast majority says, “I study at the beach.”
Nobody studies at the beach. I’d sit in class and know, without a shadow of a doubt, when the other students opened their text books and I would hear the sand pour out on the floor that I was going to bust the curve. I would spend half an hour reading a text book per afternoon after class. I’d be done before happy hour even started. And I was doing ten times more in terms of academics than anyone else except for one or two.
Plus I was working in a liquor store. That helped to make me popular.
I did a lot of extra curricular activities. I didn’t join a frat because I discovered I could cut out the middle man and join a sorority. Well, not really, I was a “big brother.”
Right.
My favorite annual holiday season was the Inter-Sorority Volleyball tournament. Girls from 8 western states playing volleyball on the beach in bikinis.
Is it OK post-Weinstein to say I enjoyed that. A lot.
They changed the name. Now it’s the All Sorority Volletball Tournament. And I think it’s more feminist than the thong-wearing 80s.
As the saying goes, you can never go home again.
Sorry. I’m feeling nostalgic. Which, again, is why I don’t like running down Oberlin.
https://www.youtube.com/watch?time_continue=4&v=o7sLDziV2hs
“Beach Boys – Be True To Your School”
Easy as it is to do.
Kali back in the 70s and 80s was a different world. We weren’t tip toeing through the feces and expended hypodermics. We weren’t dodging lamp posts as they collapsed when rusted through by hobo urine.
I don’t know why bums think they can s*** anywhere, but they can only pee on lamp posts.
Amusingly, my fellow Texans think I’m going to infect this state with the contagion that killed Kali. I’m the canary in the coal mine. I get a hint of a whiff of what ruined Kali, which used to be a fine state, and I’m sounding off at the top of my lungs.
Which irritates my girl friend like you wouldn’t believe.
Hey, Texans! I love how Chuck Schumer got the saying wrong, and said Trump was all cattle and no hat.
https://video.foxnews.com/v/5798417355001/#sp=show-clips
I have an iffy relationship with cattle ranchers. I would go hunting on Forest Service land and the ranchers who paid for the grazing rights would put up gates and generally act like they owned the national forest.
They didn’t.
Fortunately we as hunters had rifles, too, so things remained…
polite.
But on the other hand I know they work on slim profit margins. Why they went out of their way to P me off I’ll never know. Like I was out to kill their cattle.
When everyone is armed, everyone is nice to each other.
I don’t know how you down vote this.