PHILADELPHIA – A federal judge has slashed a $5.1 million defamation verdict against West Publishing down to just $400,000 after finding that the jury’s award of $2.5 million in punitive damages to each of the two law professor plaintiffs was unconstitutionally excessive.
In Rudovsky v. West Publishing Corp., No. 09-cv-00727, professors David Rudovsky of the University of Pennsylvania Law School and Leonard Sosnov of Widener Law School claimed they were falsely identified as the authors of a December 2008 supplement, or “pocket part,” to their book, “Pennsylvania Criminal Procedure: Law, Commentary and Forms.”
The professors testified at trial in December that they had stopped work on the treatise updates because of a pay dispute with West, and that they were never told that West had assigned the task of ghostwriting the update to a first-year lawyer who was given just one week to complete it.
The professors testified that they were embarrassed and humiliated to be identified as the authors because the pocket part was a “sham” that cost $50 for subscribers, but included almost no case updates.
The jury found the professors were defamed and awarded compensatory damages of $90,000 each and punitive damages of $2.5 million each, for a total award of $5.18 million.
In reviewing the award, Senior Judge John P. Fullam in the Eastern District of Pennsylvania recently ruled that the jury’s compensatory damages awards were “quite generous, but not so excessive as to warrant interference by the court.”
But turning to the punitive awards, he concluded that “a total of $5 million is undoubtedly excessive.”
The jury, Judge Fullam said, “may have been too much influenced by the net worth of the defendants,” referring to evidence at trial that West’s parent company, Thomson Reuters, has a net worth of more than $22 billion and annual operating profits of more than $1.6 billion.
Judge Fullam said the jury also “undoubtedly was influenced to some extent by the defendants’ own evidence at trial, which seemed to show that the defendants have learned nothing from the experience, and would be likely to continue to commit violations of individuals’ rights in the future.”
But Judge Fullam said it was his duty “to make sure that constitutional limitations are not violated.”
The U.S. Supreme Court, Judge Fullam said, has held that punitive damages “should not exceed the amount reasonably necessary to punish the wrongdoer for the harm actually caused, and to deter the wrongdoer from repeating such conduct in the future.”
Applying that law, he concluded that “the constitutional limit in this case should be set at $110,000 for each plaintiff. When combined with the compensatory damages, this would result in a recovery of $200,000 for each plaintiff.”
The judge’s March 30 ruling is not immediately appealable because it came in the form of a remittitur order. If the plaintiffs refuse to accept the reduced verdict within 10 days, Judge Fullam’s order says that West’s motion for a new trial will be granted.
Lead plaintiffs’ lawyer Richard L. Bazelon of Bazelon Less & Feldman declined to comment on the ruling.
West’s lead lawyer, James F. Rittinger of Satterlee Stephens Burke & Burke in New York, said in a statement that the decision “is a step in the right direction, but it certainly does not address in any way the plethora of legal and factual issues West raised that require dismissal of the action now. West is looking at its options.”
Mr. Rittinger had urged Judge Fullam to toss out the entire verdict, arguing that the plaintiffs’ defamation theory was fatally flawed and that Judge Fullam’s jury instructions were both confusing and incorrect.
But Judge Fullam had criticisms of the defense strategy, saying: “Throughout this litigation, defendants have pursued what may properly be described as a ‘scorched earth’ approach to defense—that there is no possible merit to any of plaintiffs’ complaints, that plaintiffs are money-grubbing law professors with nothing better to do than sue West, which is, after all, a highly respected publishing house, etc., etc.”
Finding that the plaintiffs’ theory was valid, Judge Fullam wrote: “There is no question about the fact that the defendants did represent to the subscribing public that the offending pocket part had been authored by plaintiffs, whereas they had nothing to do with its preparation.”
Whether the plaintiffs were defamed was for the jury to decide, Judge Fullam said, and “the evidence clearly permitted the jury to find that the pocket parts in question were totally inadequate, so much so that the reputation of the purported authors must have suffered.”
Judge Fullam said he was also “satisfied that the charge actually given to the jury was in fact correct.”
Specifically, he said the jury was “properly instructed about the requirement of actual malice before they could return an award of punitive damages, and before they could assume that plaintiffs’ reputations had been damaged; and that the pertinent findings had to be made on the basis of clear and convincing evidence.”
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