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DEFAMATION: The Rising Tides of Defamation – Bigger Awards and More Sympathetic Juries

Defamation of character lawsuits have changed significantly since I started writing about them in 2003 – from back-page news with jury awards topping at $150,000, to page A1 news in The Washington Post, with an award of $500,000 for emotional distress a

By N.C.

 

Defamation of character lawsuits have changed significantly since I started writing about them in 2003 – from back-page news with jury awards topping at $150,000, to page A1 news in The Washington Post, with an award of $500,000 for emotional distress alone to a colonoscopy patient who was slandered by an anesthesiologist while he was unconscious.

 

When it comes to the size of awards in 2016, the colonoscopy lawsuit described in The Washington Post may be an on-point case in many venues. The initial claims were for $1.75 million – with one juror voting for $0, and others favoring the full claims, the jury settled at $500,000 – plus a $200,000 malpractice award against the gastro-enteric surgeon for falsely recording a diagnosis of hemorrhoids when there were none.

 

Can such cases win outside a (supposedly) liberal venue like Washington, DC? Yes, they can. In 2003, scouring jury verdict reports from around the U.S., I had to cast a wide net to come up with the $150,000 awards. Today an Internet search easily turns up multi-million dollar jury awards anywhere including small towns. Nor are the plaintiffs or defendants necessarily big names, as in the recent Hulk Hogan case. Two recent plaintiffs were only locally eminent, but the Texas jury awarded them $13.8 million. Others are not eminent at all, like the hairdresser living in rural Georgia who was awarded $404 thousand, $250K of that as punitive damages.

 

The basis of the change in jury sympathies is unquestionably Internet defamation, which has become near-impossible to ignore. When “everyone became a publisher,” then many of them moved from local gossips to  online libelers, with trash talk that the sleaziest of tabloid newspapers can only envy … since they can’t afford the growing punitive damages.

 

The other huge change I have seen nationwide is in causes for action, epitomized by the Washington DC award. As recently as 2010, I would advise attorneys they needed more than one horse hitched to their cart. Cases based on financial harms alone, when they went to trial, normally resulted in juries tossing the plaintiff their lost wages or profits, nothing in punitive damages, and everyone on the jury getting home in time for dinner.

 

Emotional distress was even more of a yawn to most juries. Today, however, either financial harms or emotional distress can win punitive damages.

 

That is good news for pure emotional distress claims. It is also good for financial harms cases, because it is very rare that I see a financial harms defamation lawsuit where the plaintiff did not suffer mental anguish as well. (While my evidence of that might be called anecdotal, I’ve spoken to well over 500 defamation victims over the years, and after more than 500 interviews, anecdotal starts to look like “statistical.”)

 

So the change in jury “valuation” on emotional distress has radically changed the playing field, and tilted the field in favor of both causes of action. Emotional distress can now stand alone as a winning cause. And financial harms actions are routinely beefed up by a psychiatrist’s or emergency room’s report of mental anguish, ranging from a professional opinion to an ER report (typically these document either an anti-depressant prescription or a panic attack, both common among defamation victims).

 

At the bottom line: if there is real harm to reputation, or financial harm, or emotional distress – then there is probably a winning case. Likewise – thanks to news of these large jury awards – there is increasingly the likelihood of a winning settlement.