The opinion of the court was delivered by: GASCH
Plaintiffs, William P. Tavoulareas and his son Peter, filed suit in this case against defendants, The Washington Post Company (WPC), Patrick E. Tyler, Sandy Golden, Benjamin C. Bradlee, and Robert U. Woodward.
Plaintiffs claimed that they were libeled by two articles concerning the establishment of Atlas Maritime Corporation and its relationship with Mobil Oil Corporation published in The Washington Post (The Post) on November 30, 1979 and December 1, 1979. Defendant Tyler, an investigative reporter for The Post, wrote the stories aided by defendant Golden, a freelance reporter who contributed to the first article and was designated in it as a "special correspondent." Basically, the complaint alleged that these articles falsely suggested that William Tavoulareas, the president of Mobil, used his influence to set up and maintain his son Peter in Atlas, a London-based shipping firm. On July 30, 1982, a jury found that defendants WPC, Tyler and Golden had libeled the elder Tavoulareas in the November 30 article.
They awarded him $250,000 in compensatory and $1.8 million in punitive damages.
This matter is currently before the Court on the defendants' alternative motions for judgment notwithstanding the verdict (n.o.v.), new trial or reduction in the amount of the judgment.
For the reasons discussed below, the Court finds an insufficient evidentiary basis to support the jury's verdict and, therefore, grants defendants' motions for judgment n.o.v.
I. The Standard for Judgment n.o.v. Under Rule 50(b) of the Federal Rules of Civil Procedure
Defendants bear a heavy burden of proof on their motions for judgment n.o.v. A trial court may grant such a motion only when "the evidence, together with all inferences that can reasonably be drawn therefrom is so one-sided that reasonable men could not disagree on the verdict." Vander Zee v. Karabatsos, 191 U.S. App. D.C. 200, 589 F.2d 723, 726 (D.C. Cir. 1978), cert. denied, 441 U.S. 962, 60 L. Ed. 2d 1066, 99 S. Ct. 2407 (1979). A court may not evaluate the credibility of the evidence and if there is conflicting evidence present in the record, the motion may not be granted. 5A J. Moore, Moore's Federal Practice P 50.07 (2d ed. 1982). If, however, the non-moving party has presented only a "mere scintilla" of evidence at trial, the verdict may not stand. Pennsylvania R.R. Co. v. Chamberlain, 288 U.S. 333, 343, 77 L. Ed. 819, 53 S. Ct. 391 (1933); Murray v. Towers, 99 U.S. App. D.C. 293, 239 F.2d 914, 915 (D.C. Cir. 1956); Riss & Co. v. Association of American Railroads, 187 F. Supp. 306, 312 (D.D.C. 1960).
Technically, a motion for judgment n.o.v. is merely the renewal of a motion for directed verdict made at the close of all the evidence. 9 C. Wright & A. Miller, Federal Practice and Procedure, § 2537 at 596 (1970). The standard for granting a judgment n.o.v. is, therefore, the same as the standard for awarding a directed verdict.
Id. at 599. See Lester v. Dunn, 154 U.S. App. D.C. 399, 475 F.2d 983, 985 (D.C. Cir. 1973).
II. Actual Malice and the Public Figure Plaintiff
Just as the defendants at this stage of the proceeding face a stringent test for the successful maintenance of a motion for judgment n.o.v., plaintiff faced a substantially different, but equally difficult, task at trial. On June 30, 1982, this Court held that William Tavoulareas was to be considered a public figure for purposes of this trial.
As a result of this ruling, plaintiff had to establish by clear and convincing evidence, Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974),
that the defendants published the November 30 article with "actual malice." In this context, plaintiff must show that The Post published the article either knowing at the time of publication that it was false or with reckless disregard of its truth or falsity. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964); Gertz v. Robert Welch, Inc., 418 U.S. at 342.
The Supreme Court first developed the actual malice standard in New York Times Co. v. Sullivan.8 Emphasizing the importance of uninhibited, robust discussion on public issues, the Court noted that such discussion might include "vehement, caustic, and sometimes unpleasantly sharp attacks" on certain public officials. Id. at 270. Despite the fact that some of these attacks may be erroneous and defamatory, the Court held that statements of this variety must be protected if the First Amendment is to retain its vitality. Id. at 271-72. In subsequent decisions, however, the Court excluded one type of defamatory speech from constitutional protection. In Garrison v. Louisiana, 379 U.S. 64, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964), the Court explicitly held that the calculated falsehood, "the lie, knowingly and deliberately published about a public official", makes no contribution to society's vigorous interchange of ideas and is, therefore, beyond the constitutional pale. Id. at 75.
III. Plaintiff's Arguments in Support of the Verdict
As a preliminary matter, it should be noted that this article was neither "fabricated" by the defendants nor was it based merely upon the imaginations of two newspaper reporters. See St. Amant v. Thompson, 390 U.S. 727, 732, 20 L. Ed. 2d 262, 88 S. Ct. 1323 (1968). Despite the fact that certain portions of the story may have been "slanted," the record clearly reflects that Tyler expended a large amount of time and effort on its preparation. Among others, he interviewed George Comnas, the first managing director of Atlas, John Kousi, a Saudi Maritime Company (Samarco) director, and Lewis Lapham, a member of the Mobil board of directors. He researched the oil tanker management business and reviewed documents from the Federal Maritime Commission, the Subcommittee on Energy and Power of the Committee on Interstate and Foreign Commerce of the United States House of Representatives, and the Securities and Exchange Commission (SEC). Tyler attempted to speak to high level Mobil executives and to William and Peter Tavoulareas on a number of occasions but they consistently rebuffed his efforts. Mobil ultimately responded to Tyler's requests by furnishing him with written responses to his inquiries, and he included most of this information in the article.
This undisputed evidence of Tyler's extensive preparation is not dispositive, however, of the issue of actual malice. A reporter cannot shield himself from a charge of reckless disregard merely by showing that he invested a large amount of time and effort on an article's preparation. Plaintiff has provided four major bases from which he contends the jury could have properly found that the defendants acted with actual malice. Each of these contentions is addressed below.
A. The Christine Peterson Memorandum
At the time The Post published the November 30 article, the newspaper employed Christine Peterson as a copy editor. At trial she described her duties as follows:
A copy editor is a [sic] last person on the news room floor to see a piece of copy report [before it] goes into the composing room to be set into type. The copy editor basically edits a story for style, punctuation, grammar, checks what facts can be checked, with source material at hand, things like the population of the State of Utah or the area of Lake Superior, that sort of thing.
Trial Transcript at 2827. Ms. Peterson had the task of performing this "final edit" on the November 30 article. On November 27 she took the rather unusual step of writing a memorandum to her superior, Peter Milius, and discussed certain problems she had with Tyler's story. She stated that:
A far more interesting angle, it seems to me, is Mobil's concern about Saudi preference shipping -- a concern so profound that it led to the formation of an entire dummy corporation. It's impossible to believe that Tavoulareas alone could put together such a scheme for the sake of his son's business career, or that he would want to.
Pls.' Exh. 542 (emphasis supplied).
Plaintiff contends that the underlined portion of the memorandum alone could serve as a proper evidentiary basis for the jury's finding of actual malice because one editor explicitly stated to another that the major premise of the article was "impossible to believe." He claims that this proves that The Post published the article despite the fact that one of its editors had substantial doubts about its accuracy.
The defendants have advanced a strained interpretation of the memorandum in an attempt to show that Ms. Peterson did not actually mean that she found the article impossible to believe. On this motion for judgment n.o.v., however, the Court must examine all the evidence in the light most favorable to the plaintiff, and, therefore, defendants' version must be rejected. Nevertheless, no matter how this memorandum is construed, it does not prove that The Post acted with actual malice.
Ms. Peterson was a copy editor and her primary responsibility was to fine tune the article grammatically after its substance had been examined by other editors. There is no evidence whatsoever to show that Ms. Peterson had any "inside" information about Tyler's sources or research that would enable her to know, or even suspect, that the story was inaccurate. ...