DOUGLASS v. HUSTLER MAGAZINE

The opinion of the court was delivered by: Bua, District Judge.

MEMORANDUM ORDER

Before the Court are motions by defendant Hustler Magazine, Inc. ("Hustler") for judgment notwithstanding the verdict, or, in the alternative, for a new trial. For the reasons stated herein, Hustler's motion for judgment notwithstanding the verdict is denied. Hustler's motion for a new trial will be denied if plaintiff accepts remittitur in the amount of $600,000. In the event plaintiff refuses remittitur, Hustler's motion for a new trial will be granted.

I. FACTS

Plaintiff Robyn Douglass brought suit against defendant Hustler and defendant Augustine Gregory, a photographer and former employee of Hustler, alleging invasion of privacy, false light, and wrongful appropriation of plaintiff's likeness by publishing photographs of Douglass without her consent. After trial on the merits, the jury found for Douglass and against both defendants. Hustler was assessed $500,000 in compensatory damages and $1,500,000 in punitive damages; Gregory was assessed $500,000 in compensatory damages.

II. DISCUSSION

A. Covenant Not to Execute Judgment

After trial it was revealed to this Court and to Hustler that Douglass had entered into an agreement with Gregory which stipulated she would not execute any judgment against Gregory as long as Gregory's testimony remained consistent with a previous affidavit. Hustler requests post-trial relief on the grounds that Douglass' agreement with Gregory to enter into a covenant not to execute judgment at the close of trial deprived the trial of its adversary character. Hustler further argues that because the agreement was not disclosed to the Court and the jury at the time it was made, the trial was tainted, a defect which can be cured only by a new trial. Although there is some confusion as to whether or not the oral agreement was actually disclosed to Hustler's counsel, the Court, having reviewed the affidavits of the parties and their attorneys, finds that Douglass' failure to disclose the oral agreement was, at worse, harmless error. Fed.R.Civ.P. 61.

In this case, the covenant not to enforce judgment entered into between Douglass and Gregory is a type of settlement agreement. It is therefore appropriate to apply the standard of plain legal prejudice articulated in Quad/Graphics. Although the interests of justice would best have been served had the oral agreement been precisely communicated during the trial to Hustler and to this Court, Hustler has not shown plain legal prejudice as a result of Douglass' failure to do so. Clearly, there is no evidence in the record to indicate that Gregory's testimony at trial was influenced by the prospective covenent. In fact, the record shows Gregory's testimony substantially agrees with his affidavit given well before the time of trial.

Although the jury should have as much relevant information presented to it as possible, the absence of one fact is not necessarily prejudicial. Indeed, in Quad/Graphics, the court indicated that a showing of injury in fact or the creation of a tactical advantage is insufficient to establish plain legal prejudice. Quad/Graphics, 724 F.2d at 1233. There is nothing in the record to indicate, and defendant Hustler has not shown, that the jury would have brought in a different verdict had it been informed of the oral agreement between Douglass and Gregory.

Because Hustler has not demonstrated plain legal prejudice due to the unrevealed oral agreement between Douglass and Gregory or due to the covenant not to execute judgment signed by Douglass and Gregory, it is unlikely the jury would have reached a different conclusion had information concerning the covenant been revealed. Therefore, the trial was not tainted and a new trial is not necessary on the grounds of an undisclosed agreement.

Hustler next claims its liability for Douglass' injuries is wholly derivative from its employee Gregory under the theory of "respondeat superior." Therefore, according to Hustler, the covenant not to execute judgment against Gregory eliminated Douglass' right of recovery against Hustler.

Douglass' complaint, however, stated separate causes of action against Hustler as well as those derivative from Hustler's employee Gregory. Furthermore, the jury was properly instructed on the law concerning the relationship between a corporation and its officers and employees. The jury was instructed: