A court case that stemmed from the termination of a nurse who supported organizing under a labor union was decided by the Ohio Supreme Court in a way that alters state libel law in favor of the news media.
As a result of the Ohio Supreme Court’s decision last month, the most money someone suing the media over unflattering coverage could get would be $750,000 in the majority of libel lawsuits, said David Marburger, a longtime Ohio media attorney.
Before the Dec. 7 decision, there were no caps on damages, said Marburger, who has represented the Plain Dealer and cleveland.com.
It’s tough to successfully sue the media, due to constitutional protections of freedom of press enshrined in the First Amendment. But skilled lawyers who are successful at getting cases before juries can win their clients millions of dollars – and even put media out of business.
That happened with Gawker Media, which shut down two years ago after a jury ruled it had to pay $140 million in damages to Hulk Hogan for publishing a sex tape. However, the recent Ohio Supreme Court decision wouldn’t have affected Gawker, since the litigation was in Florida, said Marburger, who represented Gawker’s former editor.
A trial court awarded Ann Wayt over $1.5 million in damages in her defamation case against DHSC, which owned Affinity Medical Center near Canton.
Wayt said the hospital fired her because she and other nurses were organizing a union. The hospital claimed she neglected patients. The hospital sent a complaint to the Ohio Board of Nursing with details about alleged improper conduct, according to the Ohio Supreme Court opinion.
She couldn’t find another job, but was reinstated at Affinity after a National Labor Relations Board administrative judge determined she was fired due to the labor activity. A hospital employee, however, said in front of several nurses that the court order didn’t mean she was a good nurse. Wayt sued.
After she was awarded the $1.5 million, the hospital argued to the trial judge and later an appeals court that the damages should be reduced because the case was a tort, and through “tort reform,” Ohio had put caps on how money much people can get.
Brian Zimmerman, Wayt’s attorney, said in addition to libel, the Ohio Supreme Court’s decision could protect bad behavior by organizations, because damages are capped.
“It’s very far-reaching,” he said.
Libel is now a tort
“Tort” is a word used in civil court to mean doing something wrong or causing someone injury. Typically, tort cases involve car accidents or medical malpractice.
Affinity Medical Center argued tort law should be applied in the defamation case. Wayt attorney countered that torts only apply to people or property cases, not to reputation.
The court agreed with the hospital, ruling that defamation, slander and libel are an injury to a person.
The Wayt case was a tort, and damages needed to conform to caps the Ohio General Assembly enacted in 2004, the court decided.
The case was sent back to the trial court for a reconfiguration of the damages and a possible rehearing of arguments. Procedurally, tort cases can be different than other civil cases. One example is they can be divided into two stages — first, whether the media company is liable for libel and must pay compensatory damages, and second, whether the media is liable for punitive damages.
Marburger, the media attorney, said that many attorneys are uninterested in suing the media because the cases are hard to win.
But some attorneys do take on the cases — particularly if they’re talented at arguing before juries or believe they can pursue a case to a point when a publisher would want to settle out of court, he said.
And there is money to be made.
Many civil attorneys work for clients under agreements in which they don’t get paid unless the client gets damages — and the lawyers usually receive 30 to 40 percent of the money. That can be hundreds of thousands of dollars if the settlement is over $1 million.
“There’s a potential payoff that could be really huge,” Marburger said.
But Marburger said that incentive has been taken away now that the court has decided libel cases must conform to tort caps.
“What’s going to happen now with tort reform is a further reduction in lawsuits, not caused by the economy or reduction in journalism staffs, but a reduction in economic incentive for seasoned, experienced lawyers to sue,” he said.