Toffoloni v. LFP Publishing Group, LLC
Filing
226
Proposed Jury Instructions by Maureen Toffoloni. (Decker, Richard)
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.
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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
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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.
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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:
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(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
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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
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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.
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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)
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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)
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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
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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
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.
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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
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