Although no invasion of privacy cases have been found in
which courts have mandated a particular standard for the
burden of proof needed to show actual malice for punitive
damages, two important decisions have allowed a "preponderance
of the evidence" standard to remain undisturbed.
The Supreme Court's opinion in Cantrell v. Forest City
Publishing Co., 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419
(1974), commented favorably on jury instructions which used
"preponderance of the evidence" as the standard for the
plaintiff to sustain her burden of proof for liability and
actual malice in a false light, invasion of privacy case. Id.
at 249-250, 95 S.Ct. at 468-469. More recently, in a
defamation, invasion of privacy case, the United States Court
of Appeals for the Fifth Circuit did not quarrel with a
"preponderance of the evidence" standard for the plaintiff's
burden of proof as to liability and actual malice necessary for
punitive damages. Braun v. Flynt, 726 F.2d 245, 248 (5th Cir.
1984). The above two cases are the only cases brought to the
attention of this Court where the preponderance of the evidence
standard for the plaintiff's burden of proof is apparent.
Neither the Supreme Court in Cantrell nor the United States
Court of Appeals for the 5th Circuit in Braun saw fit to take
issue with this standard. Therefore, the standard of
"preponderance of the evidence" was correct and the jury in
this case was properly instructed as to its use in determining
whether Hustler acted with actual malice.*fn1
C. Jury Awards
Hustler argues that the jury's damage award was excessive
and was influenced by passion and prejudice, therefore
necessitating a new trial. The award for Douglass assessed
against Hustler was $500,000 in compensatory damages and
$1,500,000 in punitive damages.
In determining whether an award of compensatory damages is
excessive, the decision of the jury as the finder of fact is
given substantial deference especially, as here, in cases
involving intangible injuries. Mary Beth G. v. City of Chicago,
723 F.2d 1263, 1275 (7th Cir. 1983). "The jury is the
collective conscience of the community, and its assessment of
damages must be given particular weight when intangible
injuries are involved." Id. at 1276. Unless the Court is
convinced an award is "grossly excessive," "inordinate,"
"monstrous," or "shocking to the conscience," will the finding
of the jury be distrubed. Huff v. White Motor Corp.,
609 F.2d 286, 296 (7th Cir. 1979); Gruenthal v. Long Island Rail Road
Co., 393 U.S. 156, 159 n. 4, 89 S.Ct. 331, 333 n. 4, 21 L.Ed.2d
309 (1968); Dagnello v. Long Island Rail Road Co.,
289 F.2d 797, 802 (2d Cir. 1961).
In this case the jury could reasonably assess $500,000 in
compensatory damages against Hustler based upon Douglass'
evidence presented at trial. The jury was properly instructed
that compensatory damages include mental anguish and
suffering, injury to reputation, personal embarrassment,
humiliation, loss of income and security expenses. R. 134, p.
26. See also Gertz v. Robert Welch Inc., 418 U.S. 323, 350, 94
S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974).
The jury's award of compensatory damages in the amount of
$500,000 cannot fairly be "described as `grossly excessive' or
`monstrous' or with similar perjorative adjectival terms."
Huff, 609 F.2d at 297. Therefore, this Court will not disturb
the finding of $500,000 in compensatory damages against
Hustler. As the jury's determination was reasonable, it could
not have been influenced by passion or prejudice. Therefore, a
new trial on the issue of compensatory damages is not
Hustler claims that the $1,500,000 in punitive damages
assessed against it are grossly excessive, shock the judicial
science, and require a new trial. Hustler points out that,
after the appellate review, previous awards in libel or
invasion of privacy cases are significantly less than the jury
award in this case. Hustler states, and Douglass does not
dispute, that the largest awards to date upheld on appeal are
$400,000 in Gertz v. Robert Welch, Inc., 680 F.2d 527 (7th Cir.
1982), rev'd., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789
(1974), and $485,000 in Phoenix Newspapers, Inc. v. Church,
103 Ariz. 582, 447 P.2d 840 (1968), on remand, 24 Ariz. App. 287,
537 P.2d 1345 (1975), cert. denied, 425 U.S. 908, 96 S.Ct.
1502, 47 L.Ed.2d 759 (1976). Hustler also asserts that the size
of the punitive damage award against it is due to passion and
prejudice on the part of the jury resulting from plaintiff's
color slides showing features from Hustler Magazine and
Playboy Magazine and expert testimony from Douglass' witness as
to the differences between the two publications.
This Court agrees that the punitive damages assessed against
Hustler are excessive. This Court, however, does not agree
that the amount is a result of passion or prejudice on the
part of the jury. The jury was correctly instructed as to the
appropriate standards for awarding punitive damages and that
the amount "must be fixed with calm discretion and sound
reason, and must never be either awarded or fixed in amount,
because of any sympathy, or bias, or prejudice with respect to
any party to the case." R. 134, p. 27, 28. In order to assess
punitive damages against defendant Hustler the jury had to
find "that the act or omission" . . . "which proximately
caused actual injury or damage to the plaintiff was done with
actual malice . . ." R. 134, p. 27. No one can know exactly
how the jury arrived at this particular punitive damage
Punitive damages are not compensation for injury. Instead,
they are private fines levied by civil juries to punish
reprehensible conduct and to deter its future occurrence.
Gertz, 418 U.S. at 350, 94 S.Ct. at 3012. If a jury award
exceeds the amount required to serve the two objectives of
punishment and deterrence, the Court must reject it. McKinley
v. Trattles, 732 F.2d 1320, 1327 (7th Cir. 1984); Lenard v.
Argento, 699 F.2d 874, 890 (7th Cir. 1983). Damages should not
go beyond deterrence and become a windfall. Lenard, 699 F.2d at
890. Therefore, it is important that courts exercise control
over excessive awards.
As the Court stated in Curtis Publishing Co. v. Butts,
388 U.S. 130, 160, 87 S.Ct. 1975, 1994, 18 L.Ed.2d 1094 (1967):
We think the constitutional guarantee of freedom
of speech and press is adequately served by
judicial control over excessive jury verdicts,
manifested in this instance by the trial court's
remittitur. . . .
The correct standard is to award reasonable damages
"considering the purpose to be achieved as well as the
corporate defendant's wanton or reckless indifference to the
plaintiff's rights." Curtis Publishing Co. v. Butts,