Tacket v. Delco Remy Div. of General Motors Corp.

• Decision Date: 06 September 1991
• Docket Number: No. 89-3496,89-3496
• Parties: , 19 Media L. Rep. 1500 Thomas J. TACKET, Plaintiff-Appellee, v. DELCO REMY DIVISION OF GENERAL MOTORS CORPORATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1201

937 F.2d 1201

7 Indiv.Empl.Rts.Cas. 500, 19 Media L. Rep. 1500

Thomas J. TACKET, Plaintiff-Appellee, v. DELCO REMY DIVISION OF GENERAL MOTORS CORPORATION Defendant-Appellant.

No. 89-3496.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 1, 1990.

Decided July 22, 1991.

Rehearing Denied Sept. 6, 1991.

J. Lee McNeely, McNeely, Sanders, Stephenson & Thopy, Shelbyville, Ind., for plaintiff-appellee.

Arend J. Abel, Barnes & Thornburg, Indianapolis, Ind., Herbert C. Snyder, Jr., Barnes & Thornburg, Fort Wayne, Ind., for defendant-appellant.

Before BAUER, Chief Judge, CUDAHY and COFFEY, Circuit Judges.

BAUER, Chief Judge.

According to the age-old children's rhyme, "Sticks and stones may break your bones, but names can never hurt you." Plaintiff-appellee Thomas Tacket and the law of defamation, however, argue otherwise. According to Tacket, another mellifluous rhyme, one that read "TACKET TACKET WHAT A RACKET," when painted on the inside wall of General Motors', Anderson, Indiana, assembly plant and allowed to remain there for seven or eight months, defamed him and irreparably damaged his reputation.

In this appeal, we revisit a case that we remanded to the district court in 1987. In the instant appeal, we are asked to review the district court's decision that the jury properly could award Tacket $100,000 for the damages he suffered due to the display of the five-word rhyme. Applying settled law from both the state of Indiana and this circuit, we find that Tacket failed to prove the requisite "special damages," and therefore, his award must be reversed.

I.

Tacket filed this defamation claim in 1985 against his former employer, General Motors, in an Indiana court. General Motors removed it to federal court based on diversity jurisdiction. Tacket alleged that his reputation was irreparably damaged by the sign described above, which was written and displayed by managerial employees of General Motors. The case was tried to a jury before the Honorable James E. Noland of the Southern District of Indiana in February 1987. At the close of the evidence, Judge Noland directed a verdict for the defense. See Tacket v. Delco Remy, 678 F.Supp. 1387 (S.D.Ind.1987).

On appeal to this court, we affirmed in part, reversed in part, and remanded the case to the district court for certain factual determinations. See Tacket v. General Motors Corporation ("Tacket I "), 836 F.2d 1042 (7th Cir.1987). Specifically, the district court was to decide: 1) whether General Motors published the sign by intentionally failing to remove it; 2) whether Tacket took appropriate steps to attempt to have the sign removed; 3) whether the statement "TACKET TACKET WHAT A RACKET" did, in fact, defame Tacket; and 4) whether Tacket suffered any damage as a proximate result of the publication of the statement. Id. at 1047. In that earlier opinion, we noted that Tacket had "an unenviable task" on remand: "Even if he persuades the jury that General Motors published the small sign by inaction, that he took appropriate steps to deal with the sign, and that the sign defamed him, he still must trace injury to that sign." Id.

On remand, the case was tried to a jury before the Honorable Larry J. McKinney in April 1989. The evidence revealed the following: Thomas Tacket was an employee at Delco Remy Division of General Motors ("Delco") in Anderson, Indiana. Tacket was first employed by Delco in 1971, and rose to the level of night superintendent in 1983. In February 1985, Delco's Anderson facility was working on a generator production contract entitled the "9-S1 Project." A problem arose concerning the attainment of wooden shipping crates. Ed Spearman, one of Tacket's subordinates, suggested that "S & T Specialties" provide the needed crates. Tacket received requisition forms for the crates and processed them during off-duty hours. Both he and Spearman signed the forms.

Some time later, the union representing Delco's workers discovered that Delco was buying the crates from an outside supplier and protested the "out-sourcing" of work that Delco's own staff could have performed. The union also discovered that Spearman was the "S", and suspected that Tacket was the "T", of "S & T Specialties". (The crates were being constructed in Spearman's garage.) Delco promptly suspended both Spearman and Tacket pending an investigation. Delco ultimately fired Spearman, but concluded that it had insufficient evidence to discharge Tacket. He returned to work on April 9, 1985, but his relationship with the workers had soured. Delco thereafter transferred him to a "quality assurance team" with the same rank and salary but with fewer subordinates.

Upon learning of the out-sourcing, the workers spread rumors about Spearman and Tacket. At some point, a sign approximately 3' x 30' appeared inside the plant proclaiming the infamous rhyme "TACKET TACKET WHAT A RACKET." This sign stayed up for two to three days during Tacket's suspension. A second, smaller sign approximately 1' x 4' proclaiming the same message was stenciled on the inside wall of the plant (see photo at Tacket I, 836 F.2d at 1044) and remained there for at least seven months.

On the issue of damages, Tacket offered the testimony of Frank Connolly, a psychologist, who diagnosed Tacket to have suffered a psychiatric illness know as depressive neurosis. Connolly testified that Tacket was alienated, dysfunctional, and lacked energy. Connolly linked Tacket's condition to the small sign and noted that it affected his job performance. Tacket's job performance prior to the incident was better than after the incident, as reflected by the poor job performance ratings he received.

At the close of the evidence, the district court instructed the jurors that Tacket could prove damage from the sign in two ways: 1) if the sign were found to impute a crime or to prejudice him in his profession, then injury to his reputation would be established; or, 2) if the sign did not impute such things, then the jury was instructed that the plaintiff could recover only if "special damages" were proven. Special damages were defined as the loss of something having economic or pecuniary value, or the loss of a benefit that has an indirect financial value to the plaintiff. Special interrogatories were given to the jury to aid their deliberations.

The jury returned a verdict for the plaintiff in the amount of $100,000. The jury indicated on its special verdict form that the sign did not tend to damage the plaintiff's reputation without regard to extrinsic circumstances, but that it did defame the plaintiff when considered with other facts. The jury further found that Delco intentionally and unreasonably failed to remove that sign (thereby "publishing" it), and that plaintiff exercised proper care for the protection of his own interests.

Delco then moved to set aside the verdict, arguing that the jury's finding that the sign did not defame Tacket without consideration of extrinsic facts, coupled with Tacket's alleged failure to plead and prove "special damages," mandated entry of judgment in its favor. In its Order of July 6, 1989, the district court determined that Indiana libel law allowed recovery of proven psychological injuries as part of special damages, and permitted Tacket to amend his pleadings to conform them to the evidence. Thus, on the basis of the amended pleadings and the jury's verdict, the district court found that Tacket had indeed pleaded and proved special damages. The district court denied Delco's motion and allowed the verdict to stand. Delco then filed a motion to alter or amend the judgment, arguing that Tacket's cause of action fell within the exclusive remedy provisions of the Indiana Worker's Compensation Act, Ind.Code Sec. 22-3-6. The district court, by Order dated October 13, 1989, held that, though the defense presented by the motion was meritorious, it was not raised before the conclusion of the trial and, therefore, was not timely. Delco appealed.

II.

At the outset, we note that this court reviews a district court's denial of a motion for judgment notwithstanding the jury verdict de novo. Siddiqi v. Leak, 880 F.2d 904, 908 (7th Cir.1989) (citations omitted). In such a review, we must "determine whether there is sufficient evidence, when combined with all inferences reasonably drawn, to support the jury's verdict when the evidence is viewed in the light most favorable to the non-moving party." Id. This court will not weigh or evaluate the evidence; that task is reserved for the jury as factfinder. Instead, we are charged with determining whether the evidence, when taken as a whole, provides sufficient support for the jury's verdict. Id. See also Cygnar v. City of Chicago, 865 F.2d 827, 835 (7th Cir.1989).

Though Delco presents several claims on appeal, only one issue concerns us today: whether Tacket, under Indiana law, ¹ adequately proved special damages. In order to resolve this dispute, we need first consider the broader outlines of defamation law in Indiana. As the district court appropriately noted, defamation, defined as holding a person up to ridicule, scorn or contempt, See Black's Law Dictionary at 417 (6th ed. 1990), is comprised of two related torts: libel and slander. Libel generally is concerned with defamatory communications of a permanent sort, such as printed matter, films, and art work. Slander, on the other hand, involves transitory, ephemeral communications, such as speech, gestures, and sign language. See generally Prosser and Keeton, The Law of Torts 785-97 (5th ed. 1984) ("[L]ibel is that which is communicated by the sense of sight, or perhaps also by touch or smell, while slander is that which is communicated by the sense of hearing.").

In addition to these related torts, the law of defamation includes certain categories and labels. In its July 6, 1989 Order, the district court ably reviewed the history of defamation law and discussed the meaning of the labels "per...