Libel

$400K Libel Judgment in Lawsuit Over Statements During Election Campaign

Such libel cases aren't easy to win, but sometimes they can indeed be won.

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From McCann v. Gordon, decided last week by Judge Scott DelConte:

Defendant David Gordon [a former Oneida County legislator] repeatedly, publicly, and falsely accused Plaintiff Caitlin McCann of engaging in an illicit sexual relationship with her married employer, Oneida County Executive Anthony Picente, and then participating in a corrupt coverup to hide the affair and their nonexistent child. By Decision and Order entered February 10, 2021, this Court held that McCann established as a matter of law that Gordon had defamed her during a series of live media events and press releases….

The morning of [the scheduled damages trial on] June 4, 2021, Gordon—who elected to proceed pro se in this action after his counsel withdrew from representation—advised that he would not participate in jury selection. Thereafter, McCann waived her right to an inquest and assessment of damages by jury, and the Court proceeded with a bench trial….

After examining the exhibits and hearing all of the testimony, evaluating the credibility of the witnesses, considering the legal arguments of McCann's counsel and Gordon, and upon due deliberation, … the Court awards McCann damages in the amount of $394,416.10, consisting of $4,416.10 in economic damages; $40,000 in damages to McCann's reputation; $50,000 in past humiliation and mental anguish; $250,000 in future humiliation and mental anguish; and $50,000 in punitive damages….

This action arises out of Gordon's intentional and defamatory statements to the media and the public during his 2019 Republican Party primary campaign against incumbent Anthony Picente for the office of Oneida County Executive. Gordon's callous and cruel attacks on McCann and her character trace back to the February 8, 2019 broadcast of the long-running and popular "Keeler in the Morning" news-talk radio show and, specifically, the host's reporting that Gordon—who was, at the time, vigorously campaigning to unseat Picente—had been arrested in 2017 on a domestic violence charge following a complaint filed by Gordon's fiancee. That reporting was based upon Gordon's actual arrest record, which the show's host had journalistically obtained and then discussed, and read portions of, live on the air. Gordon was invited to appear on the radio show and respond. Gordon, however, declined.

Instead, three days later, on February 11, 2019, Gordon invited major regional media outlets to a press conference at Utica City Hall. At that well-attended event, Gordon responded to the recent reports of his prior arrest by blaming the episode on his fiancee and, as he outlandishly asserted, an unexplainable emotional imbalance caused by her pregnancy.

Gordon then strategically pivoted, and sought to redirect the gathered media's attention to his primary opponent by claiming that Picente had abused his elected office by having an affair with a former staffer, who then became pregnant and fled to South Carolina to hide the pregnancy at Picente's insistence. While Gordon did not specifically name the staffer whom he accused of having an affair, a former Oneida County official contacted McCann almost immediately after to inform her of Gordon's accusation. McCann was easily identified as the target of Gordon's allegations, because she was the only former female staffer in Picente's office to have ever relocated to South Carolina.

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  1. Important point of New York law in the judge's order: "Truth is not an element of a defamation claim, it is an affirmative defense." The defendant had to produce some evidence of pregnancy, affair, etc.

    1. "damages in the amount of $394,416.10, consisting of $4,416.10 in economic damages; $40,000 in damages to McCann's reputation; $50,000 in past humiliation and mental anguish; $250,000 in future humiliation and mental anguish; and $50,000 in punitive damages…."

      Hey, Volokh, where is the reliability and validity of these numbers? Your profession stinks. It is outrageous in its stupidity and superstitiousness. Those numbers have zero validity in the world of reality. They are totally random and arbitrary. This judge has to be removed. He is an idiot.

      Contrast to the proposed liability of those who act on the defamation, like employers, churches, clubs, where the damages are factual and measurable down to the penny.

      1. The sole validation of your stinking profession is your employment of a man with a gun. As a result, you feel you do not have to comply with the requirement of validity or even of reliability.

        Your stench justifies violence. Round up the hierarchy. Try them an hour for their insurrection against the constitution. Shoot these skunks in the court basement. We are sick of your stinking profession.

        1. What happened to the NY Times decision? Does this decision have relevance to Trump?

          1. 1. Nothing.
            2. No.

            1. Do you mean both parties were not public figures?

              1. The defendant's status is irrelevant. Only the plaintiff's status matters, and she is not a public figure.

                Also, the defendant had no reason to suppose his allegations had any truth to them. He made them with reckless disregard for their truth or falsity. That would have made him liable even if the plaintiff had been a public figure, which she is not.

  2. Typo in excerpt: "would not participate injury selection" is missing a space before jury. That document was not linked from the article. The link goes to the summary judgment order.

  3. Gordon—who elected to proceed pro se in this action after his counsel withdrew from representation—advised that he would not participate injury selection.

    Where I practice, we don't let defendants select the injuries.

    1. The defendants select the injuries and THEN they get hauled into court for causing them.

      1. I hear it can get quite personal in juries.

    2. I worked for a court reporting firm a long long time ago when computers were first being used to speed up translation from stenography (is it called shorthand? The paper tape from the machine they use in court) to printed transcripts. The computer sometimes was faced with two different equally plausible choices for the next few syllables, and always took the one with the most syllables in the next translated word.

      In this particular case, the judge said "I'd like to have your input on this problem", and the translator got flummoxed at "your in put", choosing "urine put" because it was two syllables in the next word.

      The judge was not amused at the poor proof reading. We though it was funny as all get out.

      1. The judge was pissed at the piss poor proof reading?

        1. Your input on this comment is appreciated 🙂

      2. I had a case long ago in which the reporter was the last reporter in New York State who used a pen and took things down in shorthand.
        I'm old.

  4. Was there any discussion of whether the staffer was a public official or a public figure?

    1. Yes, and she clearly was not. The candidate might have been, not his employee.

      Relevant to another series of articles here, the decision on damages states "In many instances, the media reports remain preserved digitally, and readily accessible, in perpetuity online."

      1. Thanks. I didn't think she would be, but if I was a defense lawyer, I'd try to label her with one of those tags, too.

    2. Good case here that actual malice was proven

  5. I'm glad she got these damages after it turns out that she was defamed.

    I *am* curious, though, because you've published some posts by Ward Farnsworth, the law-dean-slash-Stoic, who distinguishes between worthwhile feelings and harmful emotions.

    https://reason.com/people/ward-farnsworth/

    who distinguishes between worthwhile feelings and harmful emotions. See, e. g.,

    https://reason.com/volokh/2018/09/07/the-lawyerly-stoic/

    As to the "$50,000 in past humiliation and mental anguish; [and] $250,000 in future humiliation and mental anguish," wouldn't Farnsworth say that if you're having humiliation and mental anguish from liars and evildoers doing their usual thing (lying and evildoing), you're not following Stoic values, because a *true* Stoic wouldn't freak out over such things.

    Would Farnsworth (or Stoic lawyers like Seneca) seek damages for "mental anguish" for their Stoic clients who shouldn't be having mental anguish in the first place? What about their non-Stoic clients who have mental anguish but show philosophical lack of sophistication is such reactions?

    1. If the client is a principled Stoic, then the client can instruct the lawyer, whether the lawyer is a Stoic or not, not to seek mental distress damages. If the client is not a Stoic, and wants mental distress damages, the Stoic lawyer could try to persuade the client not to seek them, but, if push comes to shove, the Stoic lawyer must do as instructed or resign.

      1. Of course.

        I ought to have framed the issue a bit differently - should Stoics take those kinds of cases in the first place?

        Or more broadly, maybe I should have asked: If Stoics manage to control the legislature (or a Stoic becomes Emperor - it could happen though only rarely), should they abolish those kinds of damages? Or allow them as a concession to the non-philosophical, recognizing that there are people who, lacking the good fortune to be Stoic, would benefit from this kind of legislation?

  6. I wish this plaintiff luck with respect to collection. This defendant is a 30-something who claims (1) to have a two-year degree from Mohawk Valley Community College, (2) to own of a bar that was closed several years ago after a nuisance charge, (3) to own an insurance agency that appears to be located in a two-bedroom, one-bath home that sold for $50,000 a few years ago, and (4) to be a former member of an upstate New York Lions Club.

    It's easy to see what Republican voters saw in him.

    1. What a snob this Boomer is. Time to be replaced Boomer, by a diverse.

  7. You have to understand Utica/Rome NY area....this is not surprising

    1. When I think of that area, I think of Kurt Vonnegut.

  8. Wow, it's even worse when you read the opinion. Gordon went full-on RudyG levels of denying objective reality.

    "But, when the time came to actually litigate this matter in open court, Gordon refused to appear and failed to offer any evidence to support his words or his actions." (op. at 9)

    1. "Not only did Gordon defame McCann, but he also digitally created, and then published, false evidence to try to convince the public of his deceitful narrative."

      Upon further reading, I'm being unfair to Rudy. This is Mike Lindell level bat-sh** crazy.

      1. He sounds like just the type of downscale, disaffected, desperate, deplorable loser a Republican voter can't get enough of.

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