Mitchell v. Globe Intern. Pub., Inc.

• Citation: 817 F. Supp. 72
• Decision Date: 15 March 1993
• Docket Number: Civ. No. 91-3001.
• Parties: Nellie MITCHELL, Plaintiff, v. GLOBE INTERNATIONAL PUBLISHING, INC. d/b/a "Sun", Defendant.
• Court: U.S. District Court — Western District of Arkansas

817 F. Supp. 72

Nellie MITCHELL, Plaintiff, v. GLOBE INTERNATIONAL PUBLISHING, INC. d/b/a "Sun", Defendant.

Civ. No. 91-3001.

United States District Court, W.D. Arkansas, Harrison Division.

March 15, 1993.

Phillip H. McMath, McMath Law Firm, Little Rock, AR, Roy E. Danuser, Mountain Home, AR, for plaintiff.

Phillip S. Anderson, John E. Tull, Williams & Anderson, Little Rock, AR, for defendant.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

In the October 2, 1990, edition of The Sun, a supermarket tabloid published by defendant, Globe International Publishing, Inc., a photograph of Nellie Mitchell, a 96-year-old resident of Mountain Home, Arkansas, was used to illustrate a story about "Paper Gal, Audrey Wiles" in Sterling, Australia, who had become pregnant by one of her customers, a "reclusive millionaire" she met on her newspaper route. In fact, Mrs. Mitchell made her living running a newspaper stand and delivering newspapers in Mountain Home.

She sued Globe for defamation, invasion of privacy, and intentional infliction of emotional distress, and the case was tried to a jury in Harrison, Arkansas, beginning on December 2, 1991. The jury found that the defendant's conduct had invaded Mrs. Mitchell's privacy by placing her in a false light and had amounted to an intentional infliction of emotional distress. She was awarded compensatory damages in the amount of $650,000 and punitive damages of $850,000.¹

On appeal, a panel of the Court of Appeals for the Eighth Circuit, Peoples Bank & Trust Co. v. Globe International Inc., 978 F.2d 1065 (8th Cir.1992), affirmed as to liability and punitive damages, but remanded for a "substantial remittitur of compensatory damages" finding that the jury's award was "shockingly inflated."

This court, frankly, gave serious consideration to ordering remittitur in this case before it was appealed, but, after a great deal of deliberation, decided, for the reasons set forth in its opinion in 786 F.Supp. at 800, that any remittitur that the court ordered would be a mere substitution of the court's judgment for that of the jury which was in at least as good a position to determine the "worth" of what The Sun did to Mrs. Mitchell as the court was. That is still true, but, in spite of that, it is the court's duty, as directed by the Court of Appeals, to reduce the compensatory damage award by some unspecified amount with the only guideline received from the Court of Appeals being that it should be "substantial."

The Court of Appeals said:

Though we are convinced that sufficient evidence exists to sustain a compensatory award for damage to Mitchell's reputation and her mental suffering, we also conclude the amount of the award is shocking and exaggerated.

Peoples, 978 F.2d at 1071.

Thus, it appears that it is this court's duty to determine, in whatever manner, what it is "worth" to Mrs. Mitchell to suffer the humiliation, embarrassment, mental suffering, and damage to her reputation caused by the egregious conduct by defendant in placing her picture and her very existence in the middle of an odious supermarket tabloid which, among other things, had a "road kill cannibal" describing his preference for human flesh from adults over that of children— he prefers adult human flesh because it is "firm, succulent and salty and doesn't require seasonings" while "children's meat is revolting because it tastes sweet and sticks to the teeth." This court still believes that the Harrison, Arkansas, jury, chosen from all walks of life, was better situated to make that decision than this court is, but, as indicated, that is beside the point, because this court has been directed to do it.

This is an especially difficult task where the damages to be awarded are based upon intangibles such as damage to reputation and mental suffering. In fact, one distinguished writer has said that:

Except in those cases in which it is apparent as a matter of law that certain identifiable sums included in the verdict should not have been there, the court may not arbitrarily reduce the amount of damages, for to do so would deprive the parties of their constitutional right to a jury. (citing cases).

11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 2815 at p. 99 (1973) (footnotes omitted).

Of course, because of the nature of the damages in this case, there are no identifiable amounts that can be deducted, so any remittitur will, by its very nature, have to be somewhat arbitrary and speculative, and the court will, of necessity, be required to, in a very real sense, substitute its judgment for that of the jury as to the "worth" of the loss of reputation and mental suffering caused to Mrs. Mitchell by the defendant.

In view of that, it might be best that this court award a new trial, or partial new trial on the issue of damages, but the court does not understand that it has authority to do so in view of the directions which it has received from the Court of Appeals in this respect. In the last sentence of the opinion the court said:

Accordingly, for the reasons set forth above, we affirm the judgment of the district court as to liability and punitive damages, and remand for a substantial remittitur of compensatory damages. (emphasis supplied)

Id. at 1071 (emphasis added). The mandate and judgment issued contains identical language and directed that the court order "a substantial remittitur of compensatory damages" in accordance with the opinion of this court. (emphasis added).

In short, this court has been directed to order a "substantial remittitur" so it must do so. For reasons stated in the earlier opinion, this court is convinced that Mrs. Mitchell suffered substantial damages to her reputation and was caused mental suffering by being a part, against her will, of a detestable publication issued and sold across the country by the defendant.

Vada Sheid, a friend of Mrs. Mitchell described the humiliation that she...