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Publisher West Asks for New Trial|on Defamation Verdict for 2 Profs

PHILADELPHIA (CN) – Publishing giant Thomson West asked a federal judge on Wednesday to overturn a $5 million jury verdict that found West defamed two law professors by publishing a legal supplement under their names that was, in the professors’ words, “a total ripoff.”




     West’s attorneys argued that the jury’s finding of actual malice – that is, with knowledge or “serious doubts” about its defamatory character – went against the weight of the evidence.
     “Why would we publish anything where we had serious doubts about its accuracy?” James Rittinger, of Satterlee Stephens Burke & Burke, asked Judge John Fullam.
      Ritttinger acknowledged that the supplement at issue was deeply unsatisfactory, but, he argued, “Judge, this is not a negligence case.”
      “We gave it to an inexperienced editor,” he conceded. “She did a lousy job and we didn’t supervise her.”
      But even an “extreme departure from professional standards” does not constitute actual malice, Rittinger argued in his supporting brief.
      On the other side of the argument, the lawyer for the two professors, Noah Charlson of Bazelon, Less & Feldman, said there was abundant evidence to support the jury’s finding.
      “Not once did you hear Mr. Rittinger utter the word ‘recklessness’,” Charlson told Judge Fullam.
      The company acted with “purposeful avoidance” when it chose to publish the supplement, and the Supreme Court has ruled that such avoidance does, indeed, constitute actual malice, he contended.
      “The proof was in the pudding,” he said.
      While prior supplements referenced upwards of 100 new cases, the 2008 supplement referenced three, Charlson said.
      West “had no regard whatsoever for what they were putting out” and “were recklessly indifferent to the rights of these plaintiffs,” he argued.
      Answering for West, lawyer Rittinger argued that the plaintiffs didn’t prove that a single person had actually read the supplement and discerned its defamatory nature.
      But, Charlson replied, Pennsylvania law merely required proof that defamatory content was circulated, not that a recipient actually interpreted it as defamatory.
      Rittinger also argued that even if plaintiffs proved actual malice, the ratio of compensatory damages to punitive damages awarded by the jury was downright unconstitutional and demanded modification.
     Judge Fullam sardonically joked that perhaps Rittinger wanted the damages increased.
     “Judge, you know, I guess it’s funny [to you], but it’s not funny to me,” Rittinger said. And “it’s not a joking matter to the West Corporation.”
      The jury awarded each professor $90,000 in compensatory damages and $2.5 million each in punitive damages.
      “Here we have a punitive award that is 28 times the amount of the compensatory award,” which is far beyond any multiplier approved by the Supreme Court, Rittinger argued.
      “We didn’t create an oil spill that ruined the coast of Alaska,” Rittinger told the judge.
      Rittinger also argued that the judge flubbed the jury instructions, necessitating a new trial.
      “I’m not looking for a new trial, Your Honor,” he continued. “I’m looking for this case to be dismissed with prejudice,” Rittinger argued.
      Charlson replied that the ratio was appropriate, given West’s corporate wealth, its unrepentant attitude during the trial and the fact that over 400 of its subscribers relied on the woefully inadequate supplement.
     There “should be a double-digit multiplier,” Charlson said.
      The punitive award “has to be of the size to get their attention.”

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