The opinion of the court was delivered by: Bua, District Judge.
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.
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.
A. Covenant Not to Execute Judgment
The controlling law on procedures in federal courts is
federal law. In this Circuit the most recent case resolving an
issue similar to this one is Quad/Graphics, Inc. v. Myron Fass,
724 F.2d 1230 (7th Cir. 1983). In Quad/Graphics, which involved
a pretrial settlement between the plaintiff and one defendant,
the court stated that "nonsettling defendants who are not
prejudiced by a partial settlement have no standing to
challenge it." Id. at 1232. See also In Re Beef Industry
Antitrust Litigation, 607 F.2d 167, 172 (5th Cir. 1979). The
court concluded that a "nonsettling party must demonstrate
plain legal prejudice in order to have standing to challenge a
partial settlement." Quad/Graphics, 724 F.2d at 1233. By
applying the standard of plain legal prejudice to challenges to
partial settlements, the Quad/Graphics court stressed that:
. . the court should not intercede in the
plaintiff's decision to settle with certain
parties, unless a remaining party can demonstrate
plain legal prejudice. This standard should
strike the proper balance between the policy
consideration of encouraging voluntary resolution
of litigation and the court's duty to protect the
rights of the parties before it. Id. 1233.
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.
The defendant Hustler is a corporation and can
act only through its officers and employees. If
you find against defendant Hustler on either of
plaintiff's claims and determine that plaintiff
is entitled to an award of compensatory damages,
you may award punitive damages against Hustler
only if you find that a superior officer of the
corporation acted with actual malice and ordered,
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