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Posts Tagged ‘intentional infliction of emotional distress’

Third Strike Against Andrew Shirvell – 6th Circuit Upholds Substantial Damage Award

Posted on: February 12th, 2015 by Art Leonard No Comments

Just weeks ago, Michigan’s Court of Appeals dealt two strikes against former Michigan Assistant Attorney General Andrew Shirvell, rejecting his challenge to his discharge by former Attorney General Mike Cox and denying his claim for unemployment benefits.  Shirvell, who had undertaken an obsessive campaign to discredit the openly gay president of the student government association at his alma mater, University of Michigan, was held by the state appeals court to lack any First Amendment free speech claim in connection with his discharge.

Now another court has dealt him a third strike, as a unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati with jurisdiction over cases from Michigan, approved a damage award of $3.5 million against Shirvell, payable to Christopher Armstrong, the young gay man who was the victim of Shirvell’s actions.  Armstrong v. Shirvell, 2015 Westlaw 410545 (February 2, 2015).  This court also rejected any First Amendment defense.

Armstrong sued Shirvell on multiple tort claims, including defamation, false light invasion of privacy, intentional infliction of emotional distress, abuse of process, intrusion upon seclusion, and stalking.  Shirvell removed the action from state to federal court and the number of claims was reduced through pretrial actions.  The trial judge rejected Shirvell’s pretrial summary judgment motion, and Shirvell formally refused to retract various statements he had made about Armstrong.   Then the case went to trial in August 2012.  The jury found Shirvell liable for defamation, intentional infliction of emotional distress, false light invasion of privacy, and stalking, awarding Armstrong $4.5 million in total damages.  Shirvell had filed motions during and after the trial seeking to have the case dismissed, but none were granted, and the trial judge ordered Shirvell to pay the damages plus interest, denying his request to have the damages reduced.

Shirvell’s appeal attacked every aspect of the verdict, arguing that his conduct and speech were protected by the First Amendment, that the evidence did not support the jury’s conclusions, and that the trial judge’s instructions misled the jury to award excessive damages.  Writing for the Court of Appeals, Judge Julia Smith Gibbons found merit in only one of Shirvell’s objections: that inaccuracies in the trial judge’s jury charge led to the imposition of duplicative damages for defamation.

As to the merits, however, the court found that the trial record fully supported the jury’s conclusions.  As to the defamation claim, for example, Judge Gibbons wrote, “The evidence in Armstrong’s favor — demonstrating harm caused by statements that were properly submitted to the jury as defamatory — was immensely one-sided.  Through a special verdict form, the jury found over 100 statement by Shirvell defamatory and over 60 of those defamatory statements were made with actual malice.”  “Actual malice” is a legal term of art indicating that the jury found that Shirvell knew the statements were false or proceeded with reckless disregard as to whether they were true.  Even though it was arguable that the jury might have been wrong as to a few of those statements, or that some statements were not, as a matter of law, defamatory, “there is very little chance that the small number of potentially erroneous statements made a difference in the quantum of harm to Armstrong’s reputation, or to his mental or emotional state,” wrote Gibbons.

The court also rejected Shirvell’s attempt to argue that Michigan student body president Armstrong was a public figure.  The Supreme Court’s defamation cases have made it extremely difficult for a public figure to win damages for defamation, requiring a finding of “actual malice” in such cases.  The court disagreed with Shirvell about how to characterize Armstrong.  The student body president is not a public official or a government spokesperson, and the court concluded that he even fell short of the category of “limited public figure” — somebody who can be considered a public figure for limited purposes because he has thrust himself forward into a public controversy.  The only controversy in this case was created by Shirvell, not Armstrong.  But this argument would not get Shirvell very far even if the court had agreed with him, because the jury found that over 60 of Shirvell’s defamatory statements were made with actual malice, so he would be liable to Armstrong even if Armstrong was deemed to be a public figure.

As to the finding of “actual malice,” the court thought the trial record provided plenty of evidence to support the jury’s conclusion.  “A reasonable jury could conclude from the evidence that many of Shirvell’s statements were pure fabrications,” wrote Judge Gibbons.  “For example, he claims that police ‘raided’ Armstrong’s house during a party, but the evidence contradicted this.  A reasonable jury could conclude that Shirvell — who was standing outside, filming the house — simply fabricated his story.”  She described Shirvell’s attempts to minimize some of the evidence as “disingenuous” and “implausible.”

Shirvell claimed that Armstrong failed to prove that he suffered any real injury as a result of Shirvell’s actions, but the court found that there was plenty of evidence to support the jury’s conclusion that Armstrong was entitled to compensatory damages.  For one thing, having found that some of Shirvell’s statements fell into the category of per se defamation (statements that are presumed to inflict injury, such as, for example, tarring Armstrong as a racist, a liar and a Nazi), the jury could award compensatory damages without any need to find that Armstrong had suffered physically, emotionally, or financially as a result of Shirvell’s actions.  But, wrote Gibbons, the jury could have found that Armstrong did suffer actual losses. For example, it appears possible that Shirvell’s activities contributed to Armstrong’s rejection by the Teach for America program, and distracted him sufficiently during the job-seeking process to interfere with his obtaining employment after graduation.  Armstrong ended up taking unpaid internships while continuing his job search.  Although he had a modestly-compensated job by the time of trial, he testified about his concern that the notoriety around this case would adversely affect his future job searches.

Judge Gibbons also found that there was “significant evidence of the emotional harm that Armstrong suffered,” and so the court upheld the award of compensatory damages and punitive damages.

But the court agreed with Shirvell that the trial court’s instructions misled the jury into awarding duplicative damages for defamation and false light invasion of privacy.  Although Michigan law allows a plaintiff to sue for defamation and false light invasion of privacy in the same case, the two theories are so highly related that the plaintiff may “have but one recovery for a single instance of publicity,” according to a state court precedent cited by Judge Gibbons.  “Here, the jury found that seventy-seven of Shirvell’s statements constituted false light.  The jury found that each one of those statements also constituted defamation.  It then awarded a total of $1.25 million in damages for defamation and $1 million for false light.  It did not specify whether each statement generated damages for the defamation claim or the false light claim.  This suggests that the verdict allowed Armstrong to recover for the same harm under two separate theories.”

Such a duplicative recovery is not allowed, so the court of appeals cancelled the damage award for the false light claims, finding that they had already been compensated through the defamation damage award.  This reduced the overall verdict from $4.5 million to $3.5 million.  Neither of those sums seems likely ever to be actually collected by Armstrong, unless the hapless Mr. Shirvell has suddenly become a fabulously wealthy internet entrepreneur.  At this point, the verdict seems more about symbolic vindication.

 

Massachusetts Appeals Court Affirms Jury’s Rejection of Gay Man’s Tort Claims Against Former Partner

Posted on: March 20th, 2014 by Art Leonard No Comments

The Appeals Court of Massachusetts upheld a jury verdict against a gay man who sought to hold his ex-partner liable in tort for intentional infliction of emotional distress and battery based on various incidents that occurred during their relationship. The case is M.L. v. S.N., 2014 Mass. App. Unpub. LEXIS 354 (March 19, 2014).

M.L. and S.N. were engaged in a “serious romantic relationship” from 1998 until 2008. Evidently, M.L. was a really hot looking man, since he had once appeared in a nude photo spread in Advocate Men magazine. (Those curious to discover the identity of M.L. who have access to back-issues of Advocate Men (now defunct) should note the court’s description of his photographs, as described in an amicus brief submitted in the case: “a number of the photographs depict the plaintiff naked with an erection or in a position signaling his receptivity to being penetrated through anal sex,” and in one photograph he is shown wearing black leather chaps with a yellow stripe down the side, which evidence at trial indicated was a signal of the wearer’s interest in sexual conduct “involving urination.”)

M.L. claimed that his ex-partner sought to exploit M.L.’s attractiveness by using M.L. as “bait” to lure other men into “threesomes.” M.L. claimed that S.N. would pull down M.L.’s pants or shorts, exposing him in public, for such purposes, and in the course of one threesome that S.N. had facilitated a third party forcing M.L. to perform fellatio to the point of choking by holding M.L.’s head down. M.L. also claimed that S.N. anally raped him while he was unconscious due to drug ingestion, the basis for a battery claim. He also claimed that S.N. had urinated inside M.L. during anal sex without M.L.’s consent.

The trial court overruled M.L.’s motion in limine to have the nude photo-spread kept out of evidence, and barred the battery claim arising from the rape incident on statute of limitations grounds.

The Appeals Court, in a per curiam opinion, said that M.L.’s attorney had failed to preserve his objection to admission of the photos by renewing his objection at the time of their admission, although the court found that it was error for the trial judge to admit them, since they were prejudicial. “We think all would agree that evidence of a nude or partially nude photographic spread showing a young woman, for example in Playboy magazine, would not be admissible as evidence in a trial in which she alleged that her boyfriend years later degraded her and intentionally inflicted emotional distress by forcibly removing her clothing in public and exposing her breasts or genitals,” wrote the court. “A failure to recognize that the photographs at issue here are the same as those in the hypothetical case may be attributable to prejudice concerning the difference between same-sex and opposite sex couples that has no place in the law of our Commonwealth. Likewise, the fact that an individual may have engaged in a sexual act in the past is not license to force him or her to engage in such conduct unknowingly or involuntarily. The rule that is now well entrenched in our law, and codified for certain cases in our rape shield statute, is that an individual’s past sexual conduct cannot and does not mean that he or she is ‘asking for’ rape, sexual assault, or other forms of abuse. The photographs, therefore, should not have been admitted.”

The court also rejected M.L.’s argument that the forced sex with the third party should not be time barred as part of a “continuing tort” theory, finding that this single incident from long ago was “sufficiently discrete” that it should be considered an “individual allegedly tortious act” occurring too long ago to be actionable.

Perhaps now M.L. will have a claim against his trial attorney for professional negligence in failing to object to introduction of the photographs, since it is possible that the Appeals Court would have upset the jury verdict had that objection been preserved.

Federal Court Affirms $4.5 Million Damage Award Against Andrew Shirvell

Posted on: September 16th, 2013 by Art Leonard No Comments

United States District Judge Arthur J. Tarnow has affirmed a jury verdict of $4.5 million against Andrew Shirvell on September 11.  Shirvell is the homophobic former Michigan assistant attorney general who the jury found committed various wrongful acts against Christopher Armstrong, a gay man who was at the time the newly-elected student body president at the University of Michigan.  Judge Tarnow  denied Shirvell’s motions for judgment as a matter of law, for a new trial, or to amend the judgment on damages.

Shirvell, who is an alumnus of the university, was angered when he read about Armstrong’s election, becoming fixated on doing something to discredit Armstrong.  He started a blog devoted to attacking Armstrong for his “radical homosexual agenda,” claiming that Armstrong engaged in sexual misconduct in public places, among other things, with statements trading on anti-gay stereotypes.  Shirvell showed up on campus and outside Shirvell’s home, ostensibly to “document” inappropriate conduct and to protest against Armstrong.   Armstrong complained about Shirvell’s activities, which eventually led to his discharge from the attorney general’s office when an investigation showed that he had used his office computer to conduct some of his anti-Armstrong activities.  Shirvell was also barred briefly from the university campus, and his conduct was referred to lawyer disciplinary authorities and local law enforcement agencies.  The local prosecutor decided not to charge him with stalking, but Judge Tarnow found that this did not preclude Armstrong from seeking civil damages for Shirvell’s conduct.

Armstron’s lawsuit claimed that the blog attacks and stalking incidents were defamatory, an invasion of privacy and constituted intentional infliction of emotional distress.   Shirvell moved to North Babylon, New York, after losing his job, so although Armstrong’s claims all arise under Michigan state law, the case is in federal court as a suit between citizens of different states.

Shirvell’s defense, repeated over and over again unsuccessfully at trial and in his post-trial motions, was that all his activities were protected by the First Amendment as freedom of speech.  Shirvell argued that Armstrong, as the elected student body president who had put out press releases proclaiming his status as the first openly-gay man in that position, was a public figure.  This would mean that he could only hold Shirvell liable for defamation if he could show that Shirvell made defamatory statements with “actual malice,” a legal standard requiring proof that the speaker deliberately lied or spoke with deliberate indifference whether their harmful statements were true.  Shirvell also claimed that Judge Tarnow erred by not allowing him to argue to the jury that his remarks and conduct were protected by the First Amendment.

Judge Tarnow found that the question whether Shirvell’s activities were protected by the First Amendment was a question of law to be decided by the judge, not by the jury.  The jury’s role is to decide questions of fact, and in a case of this sort, that meant deciding whether the plaintiff had succeeded in proving the various elements of his tort claims.  It was up to the jury to determine whether the statements specified in Armstorng’s complaint were assertions of fact that were either true or false.  Furthermore, because Armstrong was seeking damages for emotional distress, under Michigan law he had the burden to show that Shirvell made these statements either knowing that they were untrue or with reckless disregard for whether they were true or false – the actual “malice standard” that would apply in public figure cases and that the jury would be asked to determine.

Ultimately, the jury decided that the overwhelming majority of the statements were false, and that many of them were made with actual malice.  The jury also heard evidence about the emotional distress that Shirvell’s actions caused to Armstrong, and determined how much money should be awarded to Armstrong to compensate him for this harm and to punish Shirvell for his misconduct.

Even though Judge Tarnow ruled as a matter of law that Armstrong was not a public figure and could win his defamation and invasion of privacy claims without proving actual malice, such proof would be necessary for him to win his emotional distress damage claim.  This was Armstrong’s major damage claim, because he was not alleging any significant economic injury as a result of Shirvell’s statements.  Thus, Shirvell’s continued reliance on the public figure issue in appealing the verdict seemed pointless, since the jury found that Armstrong’s evidence met the actual malice standard in order to justify the damage award.

Judge Tarnow devoted a large part of his opinion to the public figure issue, rejecting Shirvell’s argument that Armstrong’s position at the university made him into a public figure who would have to prove actual malice to win this case.  “The mention of Plaintiff Armstrong in a limited number of mostly local news publications does not render Armstrong a ‘household word,’” he wrote.  “Moreover, Plaintiff’s position as student body president did not provide Plaintiff with control or responsibility for government processes, and therefore does not qualify him as a public official.  Finally, Defendant Shirvell also fails to identify a public controversy in which Plaintiff was involved, other than the attention brought on Plaintiff by Defendant’s own statements and actions.”

Shirvell pointed to newspaper articles quoting Armstrong about being the first openly-gay student body president at Michigan as thrusting himself into public controversy, but Tarnow rejected this, writing, “Again, a matter of public interest is not in and of itself a public controversy,” as he found that Armstrong could not even be considered a limited –purpose public figure.  (A limited purpose public figure would be someone who has involved himself in a public controversy to the degree that protection of free speech on matters of public concern would require that the actual malice standard be met regarding statements relating to the Armstrong and the controversial subject.)

Shirvell’s blog and protest signs had stated that Armstrong had engaged in various kinds of misbehavior, offensive conduct, and even some criminal acts. Armstrong presented evidence that the statements were false.  At trial, Shirvell argued that his statements were either true or non-actionable statements of opinion, but the jury disagreed, and courts are loathe to set aside a jury’s factual findings, especially when the plaintiff’s evidence that the statements are false stands largely uncontradicted by the defendant’s failure to put on much of a case.  Shirvell, who represented himself at trial, only offered witnesses on the public figure issue, which Judge Tarnow found could not be presented to the jury, and provided no direct evidence that the contested statements were true.

On the issue of actual malice, Shirvell rested largely on his own testimony that he believed all the statements he made about Armstrong to be true, but his testimony provided no factual basis for those beliefs, and the court found that neither at trial nor in his post-trial briefs had he even bothered to address a large number of the statements that were in issue.  Judge Tarnow noted that the post-hearing briefs made “specific reference to less than half of the statements at issue in this case.  Of the unspecified statements, Defendant also fails to delineate which statements he alleges are true, which are allegedly protected opinion speech, and which are allegedly rhetorical hyperbole.  This Court cannot dismiss the jury verdict based on Defendant’s generalized claims.”

The judge also rejected Shirvell’s arguments against the size and scope of the damage award, finding that it fell within the normal range for cases involving this type of behavior by the defendant.

Shirvell received volunteer legal assistance on his post-trial motions, and will likely seek to appeal the court’s rulings, since he continues to maintain that all his conduct connected with Armstrong is shielded by the First Amendment.