The opinion of the court was delivered by: GREEN
JOYCE HENS GREEN, United States District Judge
On May 15, 1987, plaintiff filed his 26(b)(4) statement for his damages expert, Claudine Malone. After taking Malone's deposition on January 25, 1988, defendant has now moved in limine to exclude her testimony at trial. This motion came ripe for decision six days ago. For the reasons set forth below, defendant's motion will be granted.
Although defendant attacks Ms. Malone's proposed testimony on several fronts, it is unnecessary to discuss each because one compelling ground exists for exclusion of her testimony. At her deposition, Ms. Malone readily admitted that, when calculating the amount of plaintiff's damages, she simply assumed that plaintiff's future earning capacity had been damaged and that the alleged libels in this lawsuit caused that harm. It is well-settled, however, that a party seeking damages for loss of earning capacity must affirmatively prove both the fact and the cause of harm as a prerequisite to recovery.
As defendant observes, this is typically done through expert testimony.
Yet, here, plaintiff concedes that
Ms. Malone has admittedly relied, in part, on certain assumed facts (i.e., that plaintiff has been injured, which upon a showing of actual malice may be presumed -- Gertz v. Robert Welch, Inc., 680 F.2d 527, 540 (7th Cir. 1982), cert. denied, 459 U.S. 1226, [75 L. Ed. 2d 467, 103 S. Ct. 1233] (1983)) and hypotheticals (i.e., that plaintiff will continue in the professions of broadcast personality, author and lecturer). Reliance on presumed facts and hypotheticals is proper by an expert.
Opposition at 9. In short, plaintiff contends, without proferring any affirmative evidence that would establish the fact or cause of his special damages, that Malone's testimony should be admitted because injury to a libel plaintiff may be presumed when actual malice has been proved. See Opposition at 9. Plaintiff's contention is only partially correct, however, and incorrect as to the instant issue.
A successful libel plaintiff can recover three types of damages -- nominal, compensatory or punitive. Compensatory damages (the type at issue here) may be further subdivided into general and special damages. General damages compensate a plaintiff for harm to his reputation or emotional well-being, see Restatement (Second) of Torts § 621 comment a (1977); special damages, on the other hand, are awarded for losses of an economic or pecuniary nature. See id. § 575 comment b.
At common law, general damages could be "presumed" in a case of libel or slander per se : that is, they could be awarded without any proof of actual injury to the plaintiff. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760-61, 86 L. Ed. 2d 593, 105 S. Ct. 2939 (1985). In Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), however, the Supreme Court restricted a libel plaintiff's ability to recover presumed damages and held that they could only be recovered upon "a showing of knowledge of falsity or reckless disregard for the truth." Id. 418 U.S. at 349. Seizing on this holding, plaintiff contends that, because he will prove that defendant acted with actual malice, harm to his future earnings capacity may be presumed and Claudine Malone should be allowed to testify at trial.
The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums of money as compensation for supposed damage to reputation without any proof that such harm actually occurred.
418 U.S. at 349 (emphasis added). Finally, plaintiff's citation to a subsequent decision, Gertz v. Robert Welch, Inc., 680 F.2d 527 (7th Cir. 1982), cert. denied, 459 U.S. 1226, 75 L. Ed. 2d 467, 103 S. Ct. 1233 (1983), does not aid his cause. There, the Seventh Circuit upheld an award of presumed damages without proof of actual injury because there had been evidence of actual malice. See 680 F.2d at 540. That case is inapposite, however, because the plaintiff sought to recover for the "severe mental distress, anxiety and embarassment" that resulted from the libel. Id. Those harms are classic examples of general damages but are clearly not the types of monetary injuries that plaintiff alleges in the instant case.
In conclusion, plaintiff may not rely on a showing of actual malice in order to prove his allegation of special damages to his future earnings capacity. Plaintiff's expert must therefore be excluded from testifying at trial. Should plaintiff succeed in proving actual malice, however, nothing in this Order precludes him from obtaining compensatory damages for harm to his ...