Paul v. Hearst Corp.

Decision Date08 November 2002
Docket NumberNo. CIV.A. 3:CV-97-616.,CIV.A. 3:CV-97-616.
Citation261 F.Supp.2d 303
PartiesStephen E. PAUL, M.D. and Mary Elizabeth Paul, h/w, Plaintiffs, v. The HEARST CORPORATION d/b/a Redbook Magazine and Robert Trebilcock, Defendants.
CourtU.S. District Court — Middle District of Pennsylvania

Leslie Kart Gross, Fell & Spalding, Stephen R. Bolden, Fell & Spalding, Philadelphia, PA, for plaintiffs.

Mark R. Hornak, Buchanan Ingersoll Professional Corporation, Pittsburgh, PA, Jayson K. Wolfgang, Buchanan Ingersoll, PC, Jack M. Stover, Buchanan Ingersoll, Harrisburg, PA, Leonard H. MacPhee, Moye, Giles, O'Keefe, Vermeire & Gorrell, LLP, Denver, CO, for defendants.

MEMORANDUM AND ORDER

KANE, District Judge.

Before this Court is Defendant Hearst Corporation's motion to dismiss Plaintiff Steven E. Paul's claim for punitive damages. The motion has been fully briefed, and oral argument was heard on May 16, 2002. For the reasons discussed below, the motion will be denied.

I. Background

The background of this case has been well detailed in this Court's prior orders and in the December 27, 2001 opinion of the United States Court of Appeals for the Third Circuit, and therefore the recitation of facts here will be brief. Dr. Steven E. Paul was featured in a sidebar to an article in the May 1996 issue of Redbook Magazine entitled "Bad Medicine: The Doctors Who Could Cost You Your Life." This sidebar profiled six doctors, including Dr. Paul. Because of the article and the associated profile, Dr. Paul and his wife filed a suit for libel per se and false light in the Court of Common Pleas of Bradford County, Pennsylvania in March of 1997. Defendants Removed the action to this Court in April of 1997.

This Court bifurcated the proceedings, and held a trial to establish liability and both actual and presumed damages. A jury was to consider punitive damages in a second stage of trial, to be held only if appropriate. The proceedings are now at the start of that second stage. Prior to trial, the Court ruled that Dr. Paul is a private individual, and that the article touched upon matters of public concern. Therefore, in order to recover compensatory damages, Plaintiffs were required to establish actual malice by clear and convincing evidence. Plaintiffs met this burden. Following a three week trial, the jury found that Defendant Hearst published the libel with actual malice. The jury found no actual malice on the part of Defendant Trebilcock. However, the jury found that the Redbook article was not a substantial factor in causing injury to the Plaintiffs, and awarded no damages.1 After the verdict sheet was published to the court, the jury was dismissed.

The day after the verdict, the Court held a telephone conference with counsel. At the conference, Plaintiffs' counsel asserted that the jury verdict entitled them to have their claim for punitive damages heard by a jury. Plaintiffs subsequently filed a motion requesting a trial on the bifurcated issue of punitive damages, and motions pursuant to Fed.R.Civ.P. 59 requesting a new trial limited to punitive and presumed damages. The Court denied these motions, finding, inter alia, that "because no finding on liability was returned in favor of Plaintiffs, they are not entitled to a trial on punitive damages." Aug. 3, 2000 Mem. and Order at 5 (Doc. No. 245).

Plaintiffs filed an appeal with the United States Court of Appeals for the Third Circuit. The Third Circuit considered two issues: (1) whether the Plaintiffs were entitled to a new trial on the issue of presumed damages; and (2) whether the Plaintiffs were entitled to a trial on punitive damages. The Third Circuit held that Plaintiffs already had a trial on presumed damages and lost. Dec. 27, 2001 Op. at 8 (Doc. No. 251). With respect to punitive damages, the Third Circuit held that under Pennsylvania law, "damage is not an essential element of the tort of libel and that nominal and punitive damages may thus be awarded where compensatory damages are not sought or are sought but not found by the trier of fact." Id. at 12. The Third Circuit thus found that punitive damages are potentially available to Plaintiffs in this case, and remanded the case to this Court with instructions to conduct proceedings consistent with the December 27, 2001 opinion.

Defendant now raises three issues in a motion to dismiss brought pursuant to Fed.R.Civ.P. 12(h)2 or Fed.E.Civ.P. 50(a).3 First, Defendant argues that even though the Plaintiff established actual malice, he did not set forth sufficient evidence to establish common law malice as required for plaintiffs seeking punitive damages. Second, Defendant argues that any punitive damage award would offend the due process provisions of the Fifth and the Fourteenth Amendments. Third, Defendant argues that an award of punitive damages absent an award of compensatory damages would violate the First Amendment protection of free speech. Plaintiffs assert that all of these arguments against a trial on punitive damages are barred by the law of the case doctrine.4 Plaintiffs contend that Defendant was required to raise these arguments before the Third Circuit on appeal and Defendant's failure to do so prevents them from raising these arguments here. Plaintiffs' claims, however, are without merit as the law of the case rule applies "only to those issues that were decided by the appellate court." Casey v. Planned Parenthood of S.E. Pa., 14 F.3d 848, 857 (3d Cir.1994). On remand, a district court "may consider, as a matter of first impression, those issues not expressly or implicitly disposed of by the appellate decision." Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 950 (3d Cir.1985). Particularly where constitutional issues have neither been argued before, nor decided by, the appellate court, a district court is not precluded from addressing these issues prior to a new trial. See, e.g., United States v. Curtis, 683 F.2d 769, 772 (3d Cir.1982) (finding that district court properly considered previously unaddressed constitutional issues prior to new trial ordered by mandate). Upon careful review of the Third Circuit opinion in the present case, it is clear that neither party argued, nor did the Third Circuit address, any constitutional issues, and therefore they are properly brought and this Court is duty bound to address these issues.

II. Discussion
A. Legal Standard

Defendant's motion will be considered a motion for judgement as a matter of law under Fed.R.Civ.P. 50(a). A Court may only grant judgment as a matter of law if after "viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability." Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). "[T]he focus of [the] inquiry is not whether there is literally no evidence supporting the unsuccessful party, but whether there is evidence upon which a reasonable jury could properly base its verdict." Villanueva v. Brown, 103 F.3d 1128, 1133 (3d Cir.1997). "If the evidence is of such character that reasonable [persons], in the impartial exercise of their judgment may reach different conclusions, the case should be submitted to the jury." Id. (quoting J.I. Hass Co., Inc. v. Gilbane Bldg. Co., 881 F.2d 89, 92 (3d Cir.1989)). In ruling on a motion for judgment as a matter of law, the Court is not free to: (1) weigh the evidence, (2) pass on the credibility of witnesses, or (3) substitute its judgment of the facts for that of the jury. Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110, 113 (3d Cir.1987); Tripodi v. Johnson & Johnson, 877 F.Supp. 233, 236 (D.N.J.1995).

B. Sufficiency of Evidence to Warrant a Trial on Punitive Damages

Defendant moves to dismiss Plaintiffs' claim for punitive damages on the ground that the evidence presented at trial was legally insufficient to establish common law malice. Under Pennsylvania law, a finding of actual malice is sufficient to trigger consideration of punitive damages. DiSalle v. P.G. Publishing Co., 375 Pa.Super. 510, 544 A.2d 1345, 1365 (1988). It is unclear whether a private figure plaintiff in a case concerning a matter of public concern is required to go beyond a showing of actual malice and show common law malice before a jury may award punitive damages.5 Courts have, however, held that the evidence needed to show actual malice and that required to establish common law malice overlap significantly. Geyer v. Steinbronn, 351 Pa.Super. 536, 506 A.2d 901, 916 n. 12 (1986). In fact, it is often the case that the two types of malice are difficult to distinguish. DiSalle v. P.G. Publishing Co., 375 Pa.Super. 510, 544 A.2d 1345, 1370 (1988); Schiavone Construction Co. v. Time, Inc., 646 F.Supp. 1511, 1518 (D.N.J.1986). Pennsylvania courts maintain a distinction between the two types of malice, but leave it for a jury to decide whether common law malice has been established. DiSalle, 544 A.2d at 1370.

Considering the overlap between the two malice standards, this Court need not decide at this time which malice standard will ultimately govern the punitive damages analysis in order to decide whether Plaintiffs may proceed to the punitive damages phase of the trial. It is clear from the jury verdict from the first phase of the trial that Plaintiffs have proved actual malice which, under Pennsylvania law, permits a jury to consider punitive damages. DiSalle, 544 A.2d at 1365. If a finding of common law malice is required to award punitive damages in this case, this Court must allow a jury to decide whether the evidence also supports such a finding.

Moreover, assuming arguendo, that a showing of common law malice is required in order for Plaintiff to recover punitive damages in this case, this Court cannot say as a matter of law that the record could not support a finding of common law malice. When viewed in the light most favorable to the Plaintiffs, the evidence on record...

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