Howard v. Antilla, CIV. 97-543-M.

• Decision Date: 30 March 2001
• Docket Number: No. CIV. 97-543-M.,CIV. 97-543-M.
• Citation: 160 F.Supp.2d 169
• Parties: Robert HOWARD, Plaintiff v. Susan ANTILLA, Defendant
• Court: U.S. District Court — District of New Hampshire

160 F.Supp.2d 169

Robert HOWARD, Plaintiff v. Susan ANTILLA, Defendant

No. CIV. 97-543-M.

United States District Court, D. New Hampshire.

March 30, 2001.

COPYRIGHT MATERIAL OMITTED

Charles G. Douglas, III, Douglas, Leonard & Garvey, P.C., Concord, NH, for Plaintiff.

William L. Chapman, Orr & Reno, P.A., Concord, NH, Jonathan M. Albano, Bingham Dana, LLP, Boston, MA, for Defendant.

ORDER

McAULIFFE, District Judge.

Robert Howard brought suit to recover damages for defamation and invasion of privacy after Susan Antilla, a reporter for The New York Times, published an article about him on the first page of the Times business section on Thursday, October 27, 1994. The headline asked, "Is Howard Really Finkelstein? Money Rides On It." In the article, Antilla identified Howard as the chairman of two publically traded companies. She then disclosed a circulating "rumor" that raised questions about whether Howard was, in reality, one Howard Finkelstein, "a convicted felon who went to jail for violations of securities laws, among other things." The following day, the Times published an editor's note, conceding that no credible evidence existed to support the alleged rumor and expressing regret that it had published the rumor. It also ran an article on the front page of the business section disclosing the considerable evidence that actually established the rumor's falsity.

Following trial, the jury returned a verdict in favor of defendant on Howard's defamation claim. As to his false light/invasion of privacy claim, however, the jury found in favor of Howard and awarded him $480,000 in compensatory damages. Defendant renews her motion for judgment as a matter of law, see Fed.R.Civ.P. 50, and, in the alternative, seeks a new trial or remittitur. See Fed.R.Civ.P. 59. Plaintiff objects.

Standard of Review

Under Rule 50 of the Federal Rules of Civil Procedure, a motion for judgment as a matter of law will be granted:

only in those instances where, after having examined the evidence as well as all permissible inferences drawn therefrom in the light most favorable to non-movant, the court finds that a reasonable jury could not render a verdict in that party's favor. In carrying out this analysis the court may not take into account the credibility of witnesses, resolve evidentiary conflicts, nor ponder the weight of the evidence introduced at trial.

Irvine v. Murad Skin Research Labs., Inc., 194 F.3d 313, 316-17 (1st Cir.) (internal citations omitted), cert. dismissed 528 U.S. 1041, 120 S.Ct. 577, 145 L.Ed.2d 449 (1999). See also Negron v. Caleb Brett U.S.A., Inc., 212 F.3d 666, 668 (1st Cir. 2000).

Rule 59(a) of the Federal Rules of Civil Procedure provides, in pertinent part, that "[a] new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States ...." Grounds for a new trial include a verdict that is against the great weight of the evidence, or a damage award that is excessive, or a verdict that is so mistaken as to constitute a miscarriage of justice, or a trial that was not fair to the moving party due to substantial errors in the admission or rejection of evidence. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 433, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147 (1940); Transamerica Premier Ins. Co. v. Ober, 107 F.3d 925, 929 (1st Cir.1997). But, when substantial evidence exists to support a verdict, only a very unusual case will warrant the court's exercise of discretion to grant a new trial. See Fernandez v. Corporacion Insular De Seguros, 79 F.3d 207, 211 (1st Cir.1996).

A trial court also has discretion "to order remittitur of the award in light of the evidence adduced at trial." Kelley v. Airborne Freight Corp., 140 F.3d 335, 355 (1st Cir.1998). Under the so-called "maximum recovery rule," the court may calculate the highest award supported by the evidence, and offer the prevailing party the option to accept damages in that amount or "take his chances on a new trial in the hope that a second jury might return a verdict for a higher amount." Marchant v. Dayton Tire & Rubber Co., 836 F.2d 695, 704 (1st Cir.1988). See also Liberty Mutual Ins. Co. v. Continental Casualty Co., 771 F.2d 579, 588-89 (1st Cir.1985).

In reviewing an allegedly inconsistent verdict, this court must attempt to reconcile those inconsistencies to the extent permitted by the evidence.

A facially inconsistent verdict in a civil action — no rare phenomenon — is not an automatic ground for vacating the verdict. The court must attempt to reconcile the jury's findings, by exegesis if necessary, before it is free to disregard them.

Acevedo-Diaz v. Aponte, 1 F.3d 62, 74 n. 15 (1st Cir.1993) (citations and internal quotation marks omitted). See also Cantellops v. Alvaro-Chapel, 234 F.3d 741, 744 (1st Cir.2000) ("A duty of a trial court faced with an argument that a verdict is inconsistent is to see if the seeming inconsistencies can be reconciled."). In cases involving First Amendment freedoms, however, the court must be especially vigilant to ensure that such freedoms are adequately protected. See, e.g., Veilleux v. National Broadcasting Co., 206 F.3d 92, 106 (1st Cir.2000) ("Deference to the jury is muted, however, when free speech is implicated. In cases raising First Amendment considerations, appellate courts must conduct an independent review of the evidence on the dispositive constitutional issue.") (citations and internal quotation marks omitted).

Discussion

I. Judgment as a Matter of Law or New Trial.

Basically, defendant argues that the jury could not properly return a verdict in her favor as to the defamation claim but in favor of plaintiff with respect to the false light claim. Not surprisingly, defendant says the verdict is inconsistent and, as to the false light claim, lacks adequate support in the record evidence.

Defamation and false light are distinct torts, comprised of different elements. Compare Restatement (Second) of Torts, §§ 558, et seq. (1977) with id. § 652E. See generally Peoples Bank & Trust Co. of Mountain Home v. Globe International, Inc., 786 F.Supp. 791 (W.D.Ark.1992). Thus, while a plaintiff may obtain only a single recovery for injuries stemming from an actionable publication, he or she can bring claims for both false light and defamation; those claims are neither identical nor mutually exclusive. See Restatement (Second) of Torts § 652E cmt. b.

As to the defamation claim, the court instructed the jury that, to prevail, Howard must prove six essential elements. Of relevance to this discussion are the following:

(d) the article conveyed the false implication that plaintiff was Howard Finkelstein; and

(e) the implication that plaintiff was Finkelstein was defamatory; and

(f) defendant wrote the article: (1) with the intent to convey or endorse the implication that plaintiff was Finkelstein; and (2) with knowledge that plaintiff was not Finkelstein or with a reckless disregard for whether he was.

Jury Instructions at 17. The jury was also instructed that, as to the final element — "actual malice" — plaintiff bore a higher burden of proof: clear and convincing evidence. See generally New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). See also Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) ("When, as here, the plaintiff is a public figure, he cannot recover unless he proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice, i.e., with `knowledge that it was false or with reckless disregard of whether it was false or not.'") (quoting New York Times Co. v. Sullivan, supra).

With regard to plaintiff's false light claim, the court instructed the jury that Howard bore the burden of proof as to each of the following essential elements:

(a) that defendant published an article about plaintiff that placed plaintiff in a false light; and

(b) the false light in which plaintiff was placed would be highly offensive to a reasonable person; and

(c) defendant published the article: (1) with the intent to place plaintiff in a false light; and (2) with knowledge that the article placed plaintiff in a false light, or with reckless disregard for whether the article placed plaintiff in a false light.

Jury Instructions at 22. And, again, consistent with the rule described in New York Times v. Sullivan, supra, and subsequent cases, including Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) (applying the "actual malice" standard to invasion of privacy claims by public figures), the court instructed the jury that, as to the final element of his false light claim, plaintiff bore the burden of proof by clear and convincing evidence.

Finally, the court informed the jury of the distinction between defamation and false light:

In order to prevail on his claim for false light invasion of privacy, plaintiff need not prove that the article in question was defamatory. It is enough if he proves that he was subjected to unreasonable and highly objectionable publicity that attributes to him characteristics or beliefs that are false, provided such publicity would cause serious offense in the mind of a reasonable person.

Jury Instructions at 24. See also Restatement (Second) of Torts, § 652E cmt. b. Defendant did not object to any of the given instructions.¹

The jury's verdict on plaintiff's two claims is not inconsistent. The evidence fully supported the jury's conclusion that, while defendant might not have defamed Howard (i.e., implied that he was Finkelstein, an unsavory felon convicted of securities violations), she nevertheless did present him in an actionable false light (i.e.,...