Machleder v. Diaz

• Decision Date: 04 October 1985
• Docket Number: No. 79 Civ. 4373 (PKL).,79 Civ. 4373 (PKL).
• Citation: 618 F. Supp. 1367
• Parties: Irving MACHLEDER and Flexcraft Industries, Inc., Plaintiffs, v. Arnold DIAZ, CBS Inc., WCBS-TV, Ann Sorkowitz, Frank Pivalo, Thomas Gallagher, and Dennis P. Coyne, Defendants.
• Court: U.S. District Court — Southern District of New York

618 F. Supp. 1367

Irving MACHLEDER and Flexcraft Industries, Inc., Plaintiffs, v. Arnold DIAZ, CBS Inc., WCBS-TV, Ann Sorkowitz, Frank Pivalo, Thomas Gallagher, and Dennis P. Coyne, Defendants.

No. 79 Civ. 4373 (PKL).

United States District Court, S.D. New York.

October 4, 1985.

COPYRIGHT MATERIAL OMITTED

Wien, Malkin & Bettex, New York City, Robert A. Machleder, of counsel, for plaintiffs.

Patterson, Belknap, Webb & Tyler, New York City, Harold R. Tyler, Jr., of counsel, Coudert Brothers, New York City, Pamela Ostrager, of counsel, Ronald E. Guttman, Associate Gen. Counsel, New York City, for defendants.

DECISION

LEISURE, District Judge:

The complaint in this diversity action asserted claims for compensatory and punitive damages for libel, slander, invasion of privacy, trespass and assault and battery. The claims arose out of the May 22, 1979 broadcast by WCBS-TV of a report about the dumping of chemical wastes on a certain lot adjacent to Avenue P in Newark, New Jersey. The report was prepared by Arnold Diaz, the station's New Jersey reporter.

Applying New Jersey law, Judge Duffy dismissed two of the three invasion of privacy claims and the trespass claim upon defendants' summary judgment motion. Machleder v. Diaz, 538 F.Supp. 1364 (S.D. N.Y.1982). Pursuant to defendants' application, the trial of this case was bifurcated between the issues of liability and damages. After the close of evidence on the liability issues, the Court granted defendants' motion to dismiss the assault and battery claims pursuant to Fed.R.Civ.P. 50(a). Following the completion of the trial on both the liability and damages issues, the jury returned a verdict in favor of all defendants on the libel and slander claims but with respect to plaintiff Irving Machleder's false light invasion of privacy claim, it awarded him $250,000 in compensatory damages and $1,000,000 in punitive damages against defendant CBS, Inc. ("CBS") only.

CBS has now moved for an order granting judgment notwithstanding the verdict under Fed.R.Civ.P. 50(b), or in the alternative, an order granting a new trial under Rule 59(b). Plaintiffs have cross-moved under Fed.R.Civ.P. 11, 16(f), 26(g), 37(b)(2)(D) and 56(g) for an order imposing sanctions and reasonable costs and attorney's fees against CBS and its counsel in connection with the discovery of the videotape of the on-air broadcast of the May 22, 1979 report, and the affidavit signed by Mr. Diaz and submitted to the Court in connection with defendants' summary judgment motion.

Defendant's Post-Trial Motions

Six of the arguments raised by CBS in support of its post-trial motions were the basis for objections raised unsuccessfully at trial.¹ The six arguments, summarized in the margin, are hereby denied for the reasons previously stated by the Court on the record during the trial, with the exception of the argument that plaintiff can recover punitive damages only if he proves common law malice. That subject is treated more fully below.

The thrust of CBS's post-trial motions is directed to the jury's damage awards. CBS alleges that these awards have no foundation in the law or under the facts of this case. More specifically, CBS argues that there was insufficient evidence from which the jury could determine that Mr. Machleder suffered actual injury as a result of the May 22, 1979 broadcast. Next, assuming that plaintiff Machleder² proved actual injury, CBS contends that the amount of the award is excessive. Finally, CBS argues that the punitive damages award is unsupported by the record and is grossly excessive.

Compensatory Damages

The standard for determining whether to grant a motion for judgment notwithstanding the verdict was set forth by the Second Circuit in Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163 (2d Cir. 1980).

The trial court should grant a judgment n.o.v. only when (1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or

(2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.

Id. at 168. See also Ebker v. Tan Jay International, Ltd., 739 F.2d 812, 825 (2d Cir.1984).

In cases such as this where First Amendment considerations apply, the Supreme Court requires that "compensatory awards `be supported by competent evidence concerning the injury.'" Time, Inc. v. Firestone, 424 U.S. 448, 459, 96 S.Ct. 958, 968, 47 L.Ed.2d 154 (1976) quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974). Under New Jersey law, a plaintiff may recover compensatory damages "if he has met his burden of proving that he has suffered some loss or injury and if he has given the jury some information from which to estimate the amount of damages...." Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 477 A.2d 1224, 1226 n. 1 (1984).

The false light invasion of privacy tort "is designed to compensate for falsehoods that injure feelings rather than reputation." Sack, Libel, Slander and Related Problems, 393 (1980). "The injury is mental and subjective. It impairs the mental peace and comfort of the person and may cause suffering much more acute that that caused by bodily injury." Clark v. Celeb Publishing, Inc., 530 F.Supp. 979, 983 (S.D. N.Y.1981) (California law) (quotation omitted).

CBS argues that the trial transcript is devoid of evidence supporting the jury's compensatory damage award. After describing encounters with five people who told him that they had seen the broadcast, the following question was asked of Mr. Machleder and he gave the following answer:

Q: How did you feel when these people mentioned the broadcast to you?

A: Terribly embarrassed, terribly hurt.

Trial Transcript at 1131-32. CBS contends that this testimony constitutes the only evidence presented by plaintiff which describes the mental anguish he suffered as a result of the broadcast and does not amount to adequate proof of injury to feelings. See, e.g., Lerman v. Flynt Distributing Co., 745 F.2d 123, 141 (2d Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Reveley v. Berg Publications, Inc., 601 F.Supp. 44, 46 (W.D.Tex.1984); Nekolny v. Painter, 653 F.2d 1164, 1172-73 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982); Nellis v. Miller, 101 A.D.2d 1002, 477 N.Y.S.2d 72, 73 (4th Dep't), appeal dismissed, 63 N.Y.2d 952 (1984). In other words, CBS contends that plaintiff has offered no evidence of the nature, duration or seriousness of his mental anguish nor what effect, if any, the broadcast had on the quality of his life. See, Bullard v. Central Vermont Ry., 565 F.2d 193, 197 (1st Cir.1977). Consequently, the compensatory award must have been based on "conjecture, speculation, surmise or guess." Knapp v. Phillips Petroleum Co., 123 N.J.Super. 26, 31, 301 A.2d 451, 453 (App.Div.), certif. denied, 63 N.J. 503, 308 A.2d 668 (1973).

The argument that the exchange quoted above is the only evidence of plaintiff's hurt feelings is misleading. CBS ignores plaintiff's testimony about his apprehension that the broadcast would portray him as an illegal dumper, his frantic efforts to prevent the New Jersey footage from being broadcast and his concern that the story would damage the careers of his sons who worked in the chemical industry. In addition, it is self-evident from a viewing of the broadcast tape itself that Mr. Machleder was very upset at even the suggestion that he was somehow responsible for the barrels strewn about the lot next to the Flexcraft Industries, Inc. factory. Further, the CBS legal counsel who spoke to Mr. Machleder when plaintiff asked that the report not be broadcast testified that plaintiff was "rather agitated" at that time. While it is true that some of this testimony related to events which occurred before the report was broadcast, there is no evidence in the record to indicate that Mr. Machleder's mental state improved after the broadcast. Indeed, it is a fair inference that his fears, apprehension and anguish intensified once people started telling him that they had seen the report, as reflected in his testimony at trial.

More important, however, CBS has ignored the demeanor aspect of Mr. Machleder's testimony. The testimony that is coldly recorded in the trial transcript is stripped of the dramatic emotional manner in which it was delivered. Plaintiff's testimony was emotion-filled and more than once his voice wavered and he broke into tears. This aspect of his testimony undoubtedly impressed the jury and certainly impressed the Court that defendant's broadcast had had a genuine and profound impact on Mr. Machleder's mental condition. The fact that his torment has persisted over the intervening six years is evidence of the depth and scope of his hurt feelings.

CBS has cited several cases for the proposition that substantial compensatory awards for mental distress are improper where the only evidence is subjective. This argument is unavailing, not only because there was objective evidence to prove plaintiff's injuries, but plaintiff's conduct was competent evidence to prove such damage. "Although essentially subjective, genuine injury in this respect may be evidenced by one's conduct and observed by others." Carey v. Piphus, 435 U.S. 247, 264 n. 20, 98 S.Ct. 1042, 1052 n. 20, 55 L.Ed.2d 252 (1978). The jury's ability "to hear and see the witnesses and to have the `feel' of the case" is a significant factor for the Court to consider on this motion. Cf. State v. Johnson, 42 N.J. 146, 199 A.2d 809, 817 (1964). In addition, evidence that plaintiff had anxiety over the effect the broadcast might have on his sons is "competent evidence ... to permit the jury to assess the amount of injury." Time, Inc. v. Firestone, 424 U.S. 448, 460-61, 96 S.Ct. 958, 968-69, 47 L.Ed.2d 154 (1976) (plain...