Douglass v. Hustler Magazine, Inc.
| Citation | 607 F. Supp. 816 |
| Decision Date | 17 June 1985 |
| Docket Number | No. 81 C 6939.,81 C 6939. |
| Parties | Robyn DOUGLASS, Plaintiff, v. HUSTLER MAGAZINE, INC., and Augustine Gregory, Defendants. |
| Court | United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois) |
William D. Serpico, Robert A. Novelle, Serpico, Novelle, Dvorak & Navigato, Ltd., Chicago, Ill., for plaintiff.
Peter G. Bell, Cassidy, Schade & Gloor, Glen H. Kanwit, Peter F. Lovato, III, Jerome E. Boyle, Hopkins & Sutter, Chicago, Ill., for defendant Hustler Magazine, Inc.
A. Mark Ialongo, Chicago, Ill., for defendant Augustine Gregory.
Reversed and remanded, 7th Cir., June 17, 1985.
Before the Court are motions by defendant Hustler Magazine, Inc. ("Hustler") for judgment notwithstanding the verdict, or, in the alternative, for a new trial. For the reasons stated herein, Hustler's motion for judgment notwithstanding the verdict is denied. Hustler's motion for a new trial will be denied if plaintiff accepts remittitur in the amount of $600,000. In the event plaintiff refuses remittitur, Hustler's motion for a new trial will be granted.
Plaintiff Robyn Douglass brought suit against defendant Hustler and defendant Augustine Gregory, a photographer and former employee of Hustler, alleging invasion of privacy, false light, and wrongful appropriation of plaintiff's likeness by publishing photographs of Douglass without her consent. After trial on the merits, the jury found for Douglass and against both defendants. Hustler was assessed $500,000 in compensatory damages and $1,500,000 in punitive damages; Gregory was assessed $500,000 in compensatory damages.
After trial it was revealed to this Court and to Hustler that Douglass had entered into an agreement with Gregory which stipulated she would not execute any judgment against Gregory as long as Gregory's testimony remained consistent with a previous affidavit. Hustler requests post-trial relief on the grounds that Douglass' agreement with Gregory to enter into a covenant not to execute judgment at the close of trial deprived the trial of its adversary character. Hustler further argues that because the agreement was not disclosed to the Court and the jury at the time it was made, the trial was tainted, a defect which can be cured only by a new trial. Although there is some confusion as to whether or not the oral agreement was actually disclosed to Hustler's counsel, the Court, having reviewed the affidavits of the parties and their attorneys, finds that Douglass' failure to disclose the oral agreement was, at worse, harmless error. Fed. R.Civ.P. 61.
The controlling law on procedures in federal courts is federal law. In this Circuit the most recent case resolving an issue similar to this one is Quad/Graphics, Inc. v. Myron Fass, 724 F.2d 1230 (7th Cir. 1983). In Quad/Graphics, which involved a pretrial settlement between the plaintiff and one defendant, the court stated that "nonsettling defendants who are not prejudiced by a partial settlement have no standing to challenge it." Id. at 1232. See also In Re Beef Industry Antitrust Litigation, 607 F.2d 167, 172 (5th Cir.1979). The court concluded that a "nonsettling party must demonstrate plain legal prejudice in order to have standing to challenge a partial settlement." Quad/Graphics, 724 F.2d at 1233. By applying the standard of plain legal prejudice to challenges to partial settlements, the Quad/Graphics court stressed that:
... the court should not intercede in the plaintiff's decision to settle with certain parties, unless a remaining party can demonstrate plain legal prejudice. This standard should strike the proper balance between the policy consideration of encouraging voluntary resolution of litigation and the court's duty to protect the rights of the parties before it. Id. 1233.
In this case, the covenant not to enforce judgment entered into between Douglass and Gregory is a type of settlement agreement. It is therefore appropriate to apply the standard of plain legal prejudice articulated in Quad/Graphics. Although the interests of justice would best have been served had the oral agreement been precisely communicated during the trial to Hustler and to this Court, Hustler has not shown plain legal prejudice as a result of Douglass' failure to do so. Clearly, there is no evidence in the record to indicate that Gregory's testimony at trial was influenced by the prospective covenent. In fact, the record shows Gregory's testimony substantially agrees with his affidavit given well before the time of trial.
Although the jury should have as much relevant information presented to it as possible, the absence of one fact is not necessarily prejudicial. Indeed, in Quad/Graphics, the court indicated that a showing of injury in fact or the creation of a tactical advantage is insufficient to establish plain legal prejudice. Quad/Graphics, 724 F.2d at 1233. There is nothing in the record to indicate, and defendant Hustler has not shown, that the jury would have brought in a different verdict had it been informed of the oral agreement between Douglass and Gregory.
Because Hustler has not demonstrated plain legal prejudice due to the unrevealed oral agreement between Douglass and Gregory or due to the covenant not to execute judgment signed by Douglass and Gregory, it is unlikely the jury would have reached a different conclusion had information concerning the covenant been revealed. Therefore, the trial was not tainted and a new trial is not necessary on the grounds of an undisclosed agreement.
Hustler next claims its liability for Douglass' injuries is wholly derivative from its employee Gregory under the theory of "respondeat superior." Therefore, according to Hustler, the covenant not to execute judgment against Gregory eliminated Douglass' right of recovery against Hustler.
Douglass' complaint, however, stated separate causes of action against Hustler as well as those derivative from Hustler's employee Gregory. Furthermore, the jury was properly instructed on the law concerning the relationship between a corporation and its officers and employees. The jury was instructed:
The defendant Hustler is a corporation and can act only through its officers and employees. If you find against defendant Hustler on either of plaintiff's claims and determine that plaintiff is entitled to an award of compensatory damages, you may award punitive damages against Hustler only if you find that a superior officer of the corporation acted with actual malice and ordered, participated in or ratified the conduct upon which an award of punitive damages must be based. R. 134, p. 30.
The jury awarded relatively large punitive damages against Hustler and none against Gregory. Therefore, the jury must have found that activities of one or more superior officers of Hustler were such as to warrant the award. The jury is the finder of fact in this case and this Court will not disturb the jury's determination of Hustler's independent liability to Douglass.
Hustler argues that a new trial is warranted because the jury was improperly instructed as to the burden of proof. Hustler claims that instructing the jury that a preponderance of the evidence standard applied is inconsistent with the New York Times actual malice standard in privacy cases.
The central tension in the law of libel is between the necessity for strong First Amendment protection in order to guarantee the freedom of expression essential to a democratic government and the "strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation." Gertz v. Robert Welch, Inc., 418 U.S. 323, 348, 94 S.Ct. 2997, 3011, 41 L.Ed.2d 789 (1973). The Supreme Court in Gertz established the method to be used in balancing these competing concerns. Id. at 342-351, 94 S.Ct. at 3008-3013.
Ten years prior to Gertz, the Supreme Court, in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), established that public officials may recover damages for defamation only upon proof that "the statement was made with `actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 279-280, 84 S.Ct. at 725-726. In Gertz, the Supreme Court applied the New York Times standard to public persons:
... who, by reason of the notoriety of their achievement or the vigor and success with which they seek the public's attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.
Gertz, 418 U.S. at 342, 94 S.Ct. at 3008. The Court went on to conclude that, because there is a limited state interest in libel actions brought by public persons, the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures. Id. at 343, 94 S.Ct. at 3008.
When allegations against publishers and broadcasters are made for "invasion of privacy," "false light," or "appropriation," the same constitutional protections apply as do to allegations of defamatory falsehood. Braun v. Flynt, 726 F.2d 245 (5th Cir.1984). See also Cantrell v. Forest City Publishing Co., 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974); Time Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1966).
At trial, the jury was instructed as to Hustler's claim that Douglass is a limited public figure (R. 134, p. 19) and the constitutional privileges Hustler is entitled to assert in connection with publishing materials relating to a limited public figure. R. 134, p. 17-19. In finding for Douglass and assessing compensatory and punitive damages, the jury clearly...
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Douglass v. Hustler Magazine, Inc.
...in damages in this diversity suit against the corporation that publishes Hustler magazine, for invasion of her right of privacy. 607 F.Supp. 816. Hustler (as we shall call the magazine and its publisher interchangeably) has appealed, raising questions of tort law, freedom of the press, and ......