Oberlin denied a new trial in the Gibson’s Bakery case

From the beginning, Legal Insurrection (LI) has had the best continuing covering of the Oberlin vs. Gibson’s Bakery case (see here for a list of my posts on the matter). Yes, it’s a right-wing site (I always have to apologize for this, but not for citing the New York Times or Salon!), but LI‘s reporting has been, to the best of my knowledge, pretty fair and absolutely accurate. And, of course, Left-wing media avoids the case like a hot potato—for obvious reasons: Wokeness took a big hit.

You may recall that the jury originally fined Oberlin a total of $44 million in punitive and compensatory damages, an amount later reduced to $25 million. On top of that was added another $6.5 million to cover lawyers’ fees, so Oberlin was in it for $31.5 million—a big chunk of change. Then, since Oberlin has pleaded temporary impecuniousness and said it would file post-trial appeals to the court, so the judge ordered the college to post a $36.4 million bond.  Now, the judge has denied the college the new trial it so desperately wanted (click on screenshot):

As LI reports:

Before appealing, Oberlin College filed two post-trial motions, a Motion for Judgment Notwithstanding The Verdict (pdf.) and Motion for a New Trial (pdf.), as explained in our post, Oberlin College Seeks New Trial in Gibson’s Bakery Case.

Gibson’s Bakery responded with an Opposition to the Motion for Judgment Notwithstanding The Verdict (pdf.), and Opposition to the Motion for a New Trial (pdf.), as explained in our post, Gibson’s Bakery: Oberlin College’s request for a new trial is “baseless”.

Judge John Miraldi has ruled, denying both motions. The Order Denying Motion for Judgment Notwithstanding the Verdict (pdf.) and Order Denying Motion for New Trial (pdf.) are embedded at the bottom of the post.

In the JNOV Order, the Court ruled in pertinent part:

Judgment notwithstanding the verdict is only appropriate where, when the evidence is construed most strongly in favor of the nonmoving party, reasonable minds can come to one conclusion, and that conclusion is adverse to the non-moving party. See McMichael v. Akron General Medical Center, 2017-Ohio-7594, ,r 1 O (Ohio Ct. App. 9th Dist.); see a/so Goodrich, at ¶ 11.

The Court has reviewed and considered the parties’ respective briefs and applicable precedent and, after construing the evidence most strongly in Plaintiff’s favor, the Court does not find that the Defendants are entitled to judgment notwithstanding the verdict. Accordingly, Defendants’ Motion for Judgment Notwithstanding the Verdict is denied.

In the New Trial Order, the Court ruled in pertinent part:

Ohio Civ. R. 59(A) empowers a trial court to grant a new trial when a party has been awarded “[e]xcessive or inadequate damages, appearing to have been given under the influence of passion or prejudice”. Tesar Indus. Contractors, Inc. v. Republic Steel, 2018-Ohio-2089, ¶¶ 31 (Ohio Ct. App. 9th Dist.) (internal citations omitted).

Having considered the parties respective briefs and arguments and applicable precedent, the Court finds that the amount awarded is not manifestly excessive nor does it appear to be influenced by passion or prejudice. Accordingly, Defendants’ Motion for a New Trial or Remittitur is denied.

As far as I know, Oberlin will also be responsible for paying the interest on the award amount, which is why there’s a $36 million dollar bond secured by Oberlin. As I wrote previously:

The interest alone on the judgment (assuming a rate of 5%) is more than $4,000 per day, and that will presumably be added to the total fees should Gibson’s ultimately prevail. Ergo Gibson’s asked for this (indent from Legal Insurrection site):

The judgment interest rate in 2019 is 5%. Therefore, if appeals of this case last just three years, the total amount of post-judgment interest that Defendants will have to pay is $4,742,179.77 –which is $1,580,726.59 per year or $4,330.76 per day. [JAC: This, added to the previous award, adds up to $36 million, which is the bond that the judge just required the College to post.]

Oberlin, in the midst of declining enrollment (one reason it pleaded poverty), appears to be in it for the long haul, digging in its heels. It’s above my pay grade to speculate how an appeals court would rule, but Oberlin will surely appeal this case. In the meantime, should the college ultimately lose, the clock is ticking to the tune of $4000 per day.

h/t: BJ

35 Comments

  1. dd
    Posted September 12, 2019 at 11:42 am | Permalink

    It’s interesting, Dr. Coyne, that you feel obliged to apologize for citing right-wing sources. I often do too.

    I am trying to get to the point where I no longer do that because there are more and more instances, many of them, in which right-wing media is more accurate and fair than left-wing media.

    And most of all, right-wing is actually reporting these events. So many things that go against “wokeness” are silenced by left-wing media. (Never thought I would be using the term “left-wing media”, but there we are.)

    The result is that many friends of mine are totally ignorant of critical events because if the Times or Post don’t cover them, then they didn’t happen or it’s just right-wing lies.

    • Posted September 12, 2019 at 12:11 pm | Permalink

      I think it is because there are right-wing sites that peddle absolutely fabricated conspiracy theories. Sure, maybe there are some left-wing sites that do the same but I sure don’t know of any. As long as the right dominates in this respect, those interested in the truth will, and should, continue to apologize for citing right-wing sources.

      In a perfect world, each news source would have its own independent reputation. However, that’s just hard to make happen. Stereotypes are often right and they remain an efficient way to look at the complicated world.

      • XCellKen
        Posted September 12, 2019 at 7:50 pm | Permalink

        Alternet used to routinely print GMO Conspiracy stories

    • JonLynnHarvey
      Posted September 12, 2019 at 12:51 pm | Permalink

      The only right wing site I would heavily apologize for citing is Fox News and perhaps World Net Daily. They have especially bad track records.

  2. rickflick
    Posted September 12, 2019 at 11:44 am | Permalink

    I wonder if Oberlin admitted guilt, sincerely apologized, and voluntarily offered to pay a fine, even now after all this turmoil, they wouldn’t be treated much more leniently. Yes, they would upset some (small?) fraction of students and faculty, but everybody else would feel totally copacetic. Just an idle thought.

    • Nicholas K.
      Posted September 12, 2019 at 3:54 pm | Permalink

      A bit late for that. The time for apologies was before it went in front of a Judge. A good lawyer friend of mine told me “court should be the last option, not the first.”

  3. GBJames
    Posted September 12, 2019 at 11:48 am | Permalink

    Sub

  4. Ken Kukec
    Posted September 12, 2019 at 11:59 am | Permalink

    This should come as no surprise. Absent the discovery of some new fact (say, the revelation of juror misconduct during deliberations) the granting of such a post-verdict motion by a trial court is a legal rara avis.

    • BJ
      Posted September 12, 2019 at 5:25 pm | Permalink

      Ken, if Oberlin appeals, do you think there’s any chance of an expedited decision due to the age of the Gibsons?

      • Ken Kukec
        Posted September 12, 2019 at 6:45 pm | Permalink

        Nah. That one among a number of party-plaintiffs to a lawsuit is superannuated is no ground to expedite an appeal. Were it otherwise, every plaintiff or defendant could connive to join an aged co-party, which would play havoc with court system scheduling.

        I still think the case may settle; if Oberlin has a lick of sense (which it sure hasn’t shown so far), it will. And the Gibsons strike me as the type to entertain a reasonable offer. (At this stage, of course, “reasonable” would still mean a solid eight figures with a pair of commas.)

        • BJ
          Posted September 12, 2019 at 7:10 pm | Permalink

          Very interesting, and the logic behind the answer makes a lot of sense. Thanks.

        • Posted September 12, 2019 at 7:19 pm | Permalink

          Plus, I hope, a sincere apology by Oberlin and a commitment not to ever again malign the reputations of good people.

  5. Ken Pidcock
    Posted September 12, 2019 at 12:21 pm | Permalink

    So you recall the recent Brett Stephens bedbug affair? Well, the principal there, David Karpf, was interviewed for the Chronicle and had this to say.

    To lay my cards on the table, I’m an Oberlin alum. I think the biggest free-speech crisis on campus right now is that we currently have a court precedent, this Oberlin Gibson’s Bakery case, which, if it holds true, would mean that universities can be held liable for the protest speech of their students, to the tune of millions of dollars. If that precedent holds, that will be a free-speech crisis on campus because that will force campuses to lock down any student protest out of fear that they can be sued for millions of dollars with nuisance lawsuits.

    Of course, Oberlin was held liable for the defamatory speech of their administrators but, hell, what’s the truth if you have a point to make?

    • Nicholas K.
      Posted September 12, 2019 at 4:01 pm | Permalink

      I’m not sure he’s describing it quite right. He says “that universities can be held liable for the protest speech of their students, to the tune of millions of dollars.”

      But, wasn’t the main reason Oberlin is on the hook for millions of dollars because the administrators gave some official endorsement and support for the protests? Students can protest anything.They don’t speak for the university. But Oberlin joined that protest, and thus became liable.

      • Ann L.
        Posted September 12, 2019 at 4:58 pm | Permalink

        Yes, and if Raimondo and other administrators had just stayed out of it, the student protests would have petered out after a couple of days. Certainly after the supposed victims admitted in court that there was absolutely no racism displayed by Gibson owners.

  6. pablo
    Posted September 12, 2019 at 12:23 pm | Permalink

    Does anyone think this will have an effect on activist administrators or faculty?

    • Posted September 12, 2019 at 12:36 pm | Permalink

      Well there’s a $31 million hole in their finances, so probably.

      • phoffman56
        Posted September 12, 2019 at 12:52 pm | Permalink

        plus 5% accrued. Unless of course they actually possess the dough, and invest it in some lucrative ‘super-woke’ place, say something like a Koch Bros. Hedge
        fund, and make 15% in the interim while clogging the courts.

        • Harrison
          Posted September 12, 2019 at 1:35 pm | Permalink

          The university has an endowment which is already invested in index funds. That’s where any payout would come from.

          • phoffman56
            Posted September 12, 2019 at 3:26 pm | Permalink

            Of course. In case it went over heads, my intention was merely to point out that the appeal is likely not pure added monetary loss to Oberlin (plus a bit of “Koch” sarcasm).

          • Posted September 13, 2019 at 11:18 am | Permalink

            And that’s a shame, because it screws over students and faculty not involved.

    • Posted September 12, 2019 at 2:53 pm | Permalink

      They all have entrenched positions, and hence are not held responsible for their bad conduct. Oberlin needs to clean house, but that is not going to happen.

  7. Posted September 12, 2019 at 12:52 pm | Permalink

    Just wanted to note that these post-trial motions are rather perfunctory and almost never succeed. While I am not familiar with Ohio practice, many appellate courts require these type of motions be brought in the trial court before allowing the appeal to proceed. The rationale is to allow the trial court one last chance to correct any errors before the appellate court takes jurisdiction.

  8. Steve Gerrard
    Posted September 12, 2019 at 1:47 pm | Permalink

    Does Oberlin have grounds for appeal? Besides asking for a reduction in the award, what else can they appeal on?

    • JohnE
      Posted September 12, 2019 at 2:42 pm | Permalink

      In the course of a trial like this, Oberlin’s attorneys are likely to have made hundreds of objections to statements by witnesses and to the admission of items of physical evidence. It is also likely that many of these objections were overruled. Every instance where an objection was overruled could conceivably be grounds for an appeal.

      One of the first things I learned as a young lawyer is that there is a difference between being able to present an argument, and being able to present a “good” argument. Any decent lawyer can make an argument that black is white, but certainly not a good argument. In a case with this much money involved, it’s likely that Oberlin’s attorneys will make every possible argument to the Court of Appeals, whether or not it’s a “good” argument. However: (1) trial court judges have discretion as to many matters, and the Court of Appeals is required to defer to the trial judge’s decision on such matters; and (2) even if the Court of Appeals finds that a particular ruling by the trial judge was wrong, the Court of Appeals will not reverse the case unless it also finds that error was so significant that the jury may actually have reached a different verdict if the error had not been made. As a result, a relatively small percentage of cases are overturned on appeal.

      • Ken Kukec
        Posted September 12, 2019 at 3:19 pm | Permalink

        Yeah, and I should think that jury instructions — those proposed by the defense but not given by the court, or any non-standard instructions given at the request of the plaintiff — might also be a fertile ground for claimed error, as would be any issues raised in pretrial motions.

        I also think there may be First Amendment issues, as adverted to in the passage of the article quoted by Ken Pidcock in Comment #5 above, though I doubt those issues are anywhere near as strong as that article suggests. More likely, the First Amendment issue would concern the chilling effect the size of the damage award might have on free speech.

        • JohnE
          Posted September 12, 2019 at 4:10 pm | Permalink

          Agreed — Jury instructions proposed by the defendants and rejected by the judge, or instructions offered by the plaintiffs and given over objections by the defendants would be common grounds for appeal. Any pretrial motions made by the defendants and denied by the judge (including motions to dismiss on 1st Amendment grounds) could also be the subject of appeal.

          All and all, the defendants will have lots of things they can whine about; the question is whether the Court of Appeals (and ultimately the Ohio Supreme Court) will find any merit in any of their whining.

  9. ED HESSLER
    Posted September 12, 2019 at 2:23 pm | Permalink

    Seems to me that David Karpf has an odd view of free speech. The Gibson Bakery case is much larger.

    • harrync
      Posted September 12, 2019 at 7:21 pm | Permalink

      @ Ed H. – I am afraid that Karph shows that even on the left there are people who back the team [Oberlin, in this case], right or wrong. I was pro-Karph in the bedbug flap; now I am close to “a pox on both your houses”.

  10. david Rowlands
    Posted September 12, 2019 at 2:44 pm | Permalink

    A victory against race-baiting and class privilege. I support the Gibson’s and I have been an anti-racist all my life.

  11. Posted September 12, 2019 at 4:18 pm | Permalink

    I’d like to agree but these people are dim wits (admin ninnies) and hear only their own echo. Even if they do concede to these rulings…call yourself a place of learning, good grief!

    • Posted September 12, 2019 at 6:25 pm | Permalink

      Mine is a response to the suggestion that the big payout would lead them to be more circumspect and contrite. I may be wrong.

      • Ken Pidcock
        Posted September 12, 2019 at 7:01 pm | Permalink

        What will lead them to be more circumspect and contrite – though they won’t put it that way – will be seeing the impact this has on enrollment. Believe it or not, people really don’t care to be told what to think, and they will not care to sign up for it. No doubt the Cultural Revolution was thrilling for those first in, but, had it been voluntary, there wouldn’t have been many takers.

  12. Jon Gallant
    Posted September 12, 2019 at 7:48 pm | Permalink

    The Gibsons’ case, and the damages awarded, all turn on Oberlin’s utterly rigid refusal to admit it was wrong in accusing the bakery of racism. It would be interesting to know exactly who, at Oberlin, is so consumed with pig-headed refusal to admit error that they are willing to risk tens of millions of the college’s money. Perhaps someone (Raimondo?) believes that admitting an error in one accusation of racism will undermine that favorite trope of the entire pop-Left.

    An attitude of this sort would not be unfamiliar. At one time, Holy Mother Church could not admit the inadequacy of the Ptolemaic model of the universe, because that admission would undermine its other claims infallibility, particularly against the opposing Protestants. And Alexander Weissberg, in “The Accused”, one of the best books on the Gulag, suggested that the Soviet Great Purges were mounted to prevent anyone from admitting that the collectivization of agriculture a few years earlier had turned out rather badly.

    • Nicolaas Stempels
      Posted September 13, 2019 at 9:33 pm | Permalink

      Not accepting one is wrong or made a mistake is weak.9 What does that remind us of?
      Of despotism. As can be illustrated by Mr Ross threatening the NOAA if not repudiating a correct forecast.k
      Does Oberlin not have a board of directors or so, that can intervene when a top administrator or CEO goes rogue (Ms Raimundo?)?


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