West Again Asks Judge to Nix a Defamation Verdict

     PHILADELPHIA (CN) – A federal judge’s decision to slash a $5 million defamation award to $400,000 was not good enough, legal publishing giant Thomson West says in a new court filing.




     If U.S. District Judge John Fullam decides not to dismiss the entire case in West’s favor with prejudice, Fullam should certify an interlocutory appeal, West said in a motion for reconsideration Tuesday.
     After a four-day trial in December, a jury awarded professors David Rudovsky and Leonard Sosnov $2.5 million each in punitive damages and $90,000 apiece in compensatory damages, finding that West defamed them by portraying them as the authors of an update to a legal treatise they penned on Pennsylvania criminal procedure.
     West then asked the judge to set aside the jury verdict, and enter a judgment as a matter of law in its favor. Instead Fullam gave the professors an option on March 30 of either taking $200,000 apiece or retrying their defamation case against West.
     This offer displeased the professors as well, who filed a motion for reconsideration on Friday.
West says Fullam “did not specifically address any of the law or arguments made by West” and made “two clear errors of law” when he declined to toss the award.
     “The Court ignored the requirement that plaintiffs adduce clear and convincing evidence of actual malice,” West claims.
     To find West liability for invasion of privacy and punitive damages, the professors needed to prove the company acted with “actual malice” – that is, that West published a subpar legal supplement with knowledge or reckless disregard of the fact that they were misattributing the shoddy work in the supplement, or “pocket part,” to the professors, according to the motion.
     And since the professors were claiming defamation “by implication or innuendo,” West says they had to go one step further, and show that the publisher knew or disregarded the fact that the publication would create a “defamatory implication” for readers, who would read the content, find it to be deeply unsatisfactory, and then blame the professors for its incompetent preparation.
     West says the professors never proved that, and could not have because there is “simply no evidence that anyone at West knew or even suspected that the 2008 supplement was inadequate, and certainly not that it would be defamatory of the plaintiffs.”
     In fact, testimony showed that aside from the single West employee who truly authored the supplement, “no one else at West read the pocket part before it was released,” West says.
     Though Fullam found that West plainly attributed the pocket part to the professors, though neither had anything to do with its preparation, West says the finding concerns only falsity.
     “If this was intended by the Court to be an assessment that there was sufficient evidence to support a finding of actual malice, then the Court plainly erred,” West said.
     Fullam also erred by failing to heed statutory and appellate authority that requires plaintiffs to prove that someone both read the legal supplement and found it to be defamatory, West claims.
     West claimed in prior proceedings that it had not received a single complaint about the supplement from a subscriber, and that there was zero evidence that it was perceived by subscribers as defamatory.
     “It was essentially undisputed that plaintiffs submitted no such evidence of recipient understanding,” West claims in its motion.
     “Indeed plaintiffs testified that they had no evidence that anyone thought less of them as a result of the publication,” West says.
     The publisher says Fullam ignored this fact in his March 30 decision, and found the publication to be so unsatisfactory that the professors “must have suffered.”
     “This very phrasing is an implicit concession by the Court that no actual reputational harm was proven,” West claims (emphasis in original).
     The professors’ attorney had argued that Pennsylvania law merely requires proof that defamatory content was circulated, not that a reader understood the content to be defamatory.

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