Toffoloni v. LFP Publishing Group, LLC

Filing 226

Proposed Jury Instructions by Maureen Toffoloni. (Decker, Richard)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA MAUREEN TOFFOLONI, as Administrarix and Personal Representative of the ESTATE OF NANCY E. BENOIT, Plaintiff, v. LFP PUBLISHING GROUP, LLC, d/b/a Hustler Magazine, MARK SAMANSKY, an Individual, and other distributors and sellers of, Hustler Magazine, as Defendants X, Y, and Z, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 1:08-CV-0421-TWT PLAINTIFF'S PROPOSED COURT'S INSTRUCTIONS TO THE JURY I. INTRODUCTION Pursuant to the instructions in the Court's Pretrial Order, Plaintiff hereby submits Plaintiff's Proposed Court's Instructions to the Jury for the jury trial on damages in this case. The Proposed Instructions assume that the Court has presented the well-pleaded factual assertions and well-pleaded cause of action in Plaintiff's Complaint as findings that have been made by the Court with respect to Defendant’s 3197-007\\Pleading\37050.wpd liability. Accordingly, the proposed instructions discuss the causes of action that were established in Plaintiff's favor and the damages that can be awarded. The focus of these Proposed Instructions is an instruction of the elements for awarding damages with respect to each of the causes of action. With respect to the causes of action under Georgia law, Plaintiff has drawn primarily from holdings of the Georgia Supreme Court, the Georgia Court of Appeals, or statutory provisions. II. PROPOSED INSTRUCTIONS TO THE JURY Members of the Jury: I will now explain to you the rules of law that you must follow and apply in deciding the damages to be awarded in this case. [Court's general instructions] Damages for Violation of Publicity In this case, the Plaintiff has established that Defendant, LFP Publishing Group, LLC d/b/a Hustler Magazine committed the tort of violation of the Plaintiff's right of publicity. I charge you that the appropriation of another's name and likeness without consent and for the financial gain of the Defendant is an intentional tort in Georgia. The measure of damages for a violation of a person’s right of publicity is the value of the benefit derived by the person appropriating the other’s name or likeness. 3197-007\\Pleading\37050.wpd -2- The Court has read you the facts that have been judicially found in this case. The Court has determined that those facts legally establish that Defendant LFP violated Plaintiff's right of publicity by publishing nude and partially nude images of Nancy Benoit, without the permission or consent of the Plaintiff, for the financial gain of the Defendant. Accordingly, you should award Plaintiff an amount of money that will fairly and adequately compensate Plaintiff for damages proximately caused by the Defendant's violation of her right of publicity. In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based upon speculation or guesswork, because it is only actual damages that are recoverable. You should consider the following elements of compensatory damages, to the extend you find them by a preponderance of the evidence: 3197-007\\Pleading\37050.wpd -3- (a) The extent to which the Defendant LFP benefitted from the March 2008 issue of Hustler Magazine which contained the images of Nancy Benoit; and (b) The value to the Defendant of the use of the images of Nancy Benoit without the permission or consent of the Plaintiff. Punitive Damages Plaintiff also claims that the acts of the Defendant were done with intent, malice or conscious indifference to the Plaintiff's rights so as to entitle the Plaintiff to an award of punitive damages in addition to compensatory damages. I charge you that, before you may award punitive damages, the Plaintiff must prove by clear and convincing evidence that the Defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care that would raise the presumption of conscious indifference to consequences. If you find that the Defendant so acted, the law would allow you, in your discretion, to assess punitive damages against the Defendant as punishment and as a deterrent. Punitive damages are awarded not as compensation to the Plaintiff, but solely to punish, penalize, or deter the Defendant. I further charge you that willfulness and wantonness imports premeditation or knowledge and consciousness that injury will result from the act 3197-007\\Pleading\37050.wpd -4- done. If you find that the acts of the Defendant have been of a character to import premeditation or knowledge and consciousness of the appropriation and its continuation, an award of punitive damages would be authorized. As I have previously instructed you, the measure of damages in a violation of publicity case such as this is the value of the benefit derived by the person appropriating the other’s name or likeness. To discourage the “inverse condemnation” of a name or likeness, the jury may also award punitive damage when it finds that the acts of the Defendant have been of such a character as to import premeditation or knowledge and consciousness of the appropriation and its continuation. When assessing punitive damages, you must be mindful that punitive damages are meant to punish the Defendant for the specific conduct that harmed the Plaintiff in the case and for only that conduct. However, in determining the amount of punitive damages to award, you can consider the level of reprehensibility of the Defendant's conduct, including whether the conduct involved repeated actions and whether it showed a reckless disregard for the rights of others. A recidivist - or one who engages in such conduct repeatedly may be punished more severely with punitive damages than a first 3197-007\\Pleading\37050.wpd -5- offender, because repeated misconduct is more reprehensible than an individual instance of misconduct. If you find that punitive damages should be assessed against the Defendant, you may consider the financial resources of the Defendant in fixing the amount of such damages. Under Georgia law, punitive damages are capped at $250,000 unless the Plaintiff proves that a Defendant acted, or failed to act, with specific intent to cause harm. There is no limitation on the amount of punitive that can be awarded against a Defendant where the Plaintiff has proved that a Defendant has acted with a specific intent to harm. I charge you that, a specific intent to harm is where the actor desires to cause the consequences of his act or where the actor believes that the consequences of his act are substantially certain to result from his act. Thus, if you conclude that the Defendant acted with a specific intent to harm, you are not limited to awarding punitive damages of $250,000, and your award may be as small or as large as you believe necessary to fulfill the purpose of punitive damages. 3197-007\\Pleading\37050.wpd -6- Citations to Authority Alonzo v. Parfet, 253 Ga. 479, 325 S.E.2d 152 (1985) Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc., 694 F.2d 674, 680 (11th Cir. 1983) Cabaniss v. Hipsley, 114 Ga. App. 367, 387 (1966) Eleventh Circuit Pattern Jury Instructions O.C.G.A. §§ 51-12-5.1(b), (c), (f), and (g) McDaniel v. Elliott, 269 Ga. 262 (1998) State Farm Mutual Auto Ins. v. Campbell, 538 U.S. 408, 420 (2003) BMW of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996) 3197-007\\Pleading\37050.wpd -7- Attorneys’ Fees and Expenses of Litigation As I have previously instructed you, the Defendant's violation of the Plaintiff's right of publicity is an intentional tort in Georgia. I charge you that every intentional tort invokes a species of bad faith that entitles a person wronged to recover her expenses of litigation, including attorneys' fees. You may consider the evidence provided to you as to the amount of attorneys' fees and expenses of litigation to be awarded to the Plaintiff Citations to Authority O.C.G.A. § 13-6-11 DeKalb County v. McFarland, 231 Ga. 649, 651, 203 S.E.2d 495 (1974) 3197-007\\Pleading\37050.wpd -8- Respectfully submitted June 10, 2011. /s/ Richard P. Decker RICHARD P. DECKER State Bar of Georgia #215600 F. EDWIN HALLMAN, JR. State Bar of Georgia #319800 RICHARD A. WINGATE State Bar of Georgia #770617 ZACHARY M. WILSON III State Bar of Georgia #559581 For HALLMAN & WINGATE, LLC Attorneys for Plaintiff 166 Anderson Street, S.E. Suite 210 Marietta, Georgia 30060 (404) 588-2530 3197-007\\Pleading\37050.wpd -9- UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA MAUREEN TOFFOLONI, as Administrarix and Personal Representative of the ESTATE OF NANCY E. BENOIT, Plaintiff, v. LFP PUBLISHING GROUP, LLC, d/b/a Hustler Magazine, MARK SAMANSKY, an Individual, and other distributors and sellers of, Hustler Magazine, as Defendants X, Y, and Z, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 1:08-CV-0421-TWT CERTIFICATE OF SERVICE This is to certify that on June 10, 2011, I have electronically filed the foregoing Plaintiff’s Proposed Court’s Instructions to the Jury with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorney(s) of record: James Clifton Rawls, Esq. S. Derek Bauer, Esq. Barry J. Armstrong, Esq. 3197-007\\Pleading\37050.wpd Darrell Jay Solomon, Esq. Jeffrey F. Reina, Esq. Paul J. Cambria, Esq. and by placing a copy of same in the United States Mail in a properly addressed envelope with adequate postage thereon to: William M. Feigenbaum, Esq. Lipsitz, Green, Scime, Cambria, LLP 42 Delaware Avenue, Suite 120 Buffalo, NY 14202 /s/ Richard P. Decker RICHARD P. DECKER State Bar of Georgia #215600 For HALLMAN & WINGATE, LLC Attorneys for Plaintiff 166 Anderson Street, S.E. Suite 210 Marietta, Georgia 30060 (404) 588-2530 3197-007\\Pleading\37050.wpd

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