Toffoloni v. LFP Publishing Group, LLC

Filing 255

TRANSCRIPT of Jury Trial Proceedings (Volume V) held on June 17, 2011, before Judge Thomas W. Thrash, Jr. Court Reporter/Transcriber Susan C. Baker, Telephone number 404-215-1558. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/28/2011. Redacted Transcript Deadline set for 8/8/2011. Release of Transcript Restriction set for 10/5/2011. (Attachments: # 1 Notification of Filing of Official Transcript) (kac)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MAUREEN TOFFOLONI, as
Administrator and Personal
Representative of the Estate
of Nancy E. Benoit,

)
)
)
)
)
Plaintiff,
)
)
-vs)
)
LFP PUBLISHING GROUP, LLC,
)
doing business as Hustler
)
Magazine,
)
)
Defendant.
)
______________________________ )

Docket No. 1:08-CV-421-TWT
June 17, 2011
Atlanta, Georgia
9:35 a.m.

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TRANSCRIPT OF THE JURY TRIAL PROCEEDINGS
BEFORE THE HONORABLE THOMAS W. THRASH, JR.,
U.S. DISTRICT COURT JUDGE, AND A JURY

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VOLUME V

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APPEARANCES OF COUNSEL:
On behalf of the Plaintiff:

Richard Decker
Francis Edwin Hallman, Jr.
HALLMAN & WINGATE

On behalf of the Defendant:

Derek Bauer
Barry Armstrong
MCKENNA, LONG & ALDRIDGE

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Proceedings recorded by mechanical stenography
and computer-aided transcript produced by
SUSAN C. BAKER, RMR, CRR
2194 U.S. COURTHOUSE
75 SPRING STREET, S.W.
ATLANTA, GA 30303
[phone]

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I N D E X

Page

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Punitive Damages Phase
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Closing Arguments

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Charge to the Jury

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Verdict

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(Proceedings held in Atlanta, Georgia, June 17, 2011,
9:35 a.m., in open court.)

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THE COURT:

Good morning, counsel.

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MR. DECKER:

Good morning, Judge.

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MR. BAUER:

Good morning, Your Honor.

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THE COURT:

All right.

Yesterday I told y'all I was

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going to follow the pattern jury instruction on punitive

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damages from the 2005 pattern jury instructions.

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something about the 2010 edition.

I said

There is no 2010 edition.

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2005 is the latest.

2010 is criminal only.

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to do is what I said yesterday from the 2005 pattern

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instructions.

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Are you ready, Mr. Decker?

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MR. DECKER:

So what I intend

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Your Honor, I am.

Will I be permitted

to open and conclude the argument within my time limits?

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THE COURT:

Yes, sir.

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Ready, Mr. Bauer?

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MR. BAUER:

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We would just for the record ask the Court to

Yes, Your Honor.

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reconsider the punitive damages charge from the 11th Circuit

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pattern jury instruction given the annotation that clearly

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references the State Farm case and the recent pronouncements

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from the U.S. Supreme Court.

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hard-copy book version that you have.

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11th Circuit's website copy of the jury instructions.

I don't know if that is in the
It's certainly on the

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THE COURT:

Well, it is in my copy of it.

And

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notwithstanding the fact that they talk about that stuff, it

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still has the pattern instruction that I read to you yesterday.

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MR. BAUER:

It certainly does.

We think that the

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suggestion in the annotations and comments are meant to allow

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the Court to instruct the jury appropriately when the factors

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enunciated in the State Farm case apply as they would in this

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case.

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THE COURT:

I'm going to continue doing what the 11th

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Circuit has said in this case whether I agree or disagree with

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it, and that's the pattern.

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MR. BAUER:

Thank you, Your Honor.

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THE COURT:

We're ready for the jury.

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(Jury entered the courtroom.)

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THE COURT:

Good morning, Ladies and Gentlemen.

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Thank you for all being here on time so we could resume the

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trial promptly this morning.

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All right, Mr. Decker.

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-

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CLOSING ARGUMENTS - PUNITIVE DAMAGES

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MR. DECKER:

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Good morning again, Ladies and Gentlemen.

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We have all had a long week.

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you have.

Thank you, Your Honor.

I know I have.

So, fortunately, I'm going to be brief.

I know

I just want

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to say a few things, and then I'll put my client in your hands

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for the last time.

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First, I want to thank you for your verdict.

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Mrs. Toffoloni thanks you.

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and that's what the word verdict means.

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Latin words which mean to speak the truth, and I believe that

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your verdict does speak the truth, and thank you.

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I thank you.

It speaks the truth,
It comes from two

We have one more thing to ask of you today, and that
is the amount of punitive damages.

But before we get to that,

I'd like to say a couple other things.

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I can't deny, Ladies and Gentlemen, that I was hoping

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for a little remorse from Hustler yesterday.

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stage of the game, even after three-and-a-half years, I was

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still hoping for a little remorse; but it didn't happen.

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hoping that Ms. Hahner would say something to you to let you

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know that they are sorry and they understand the seriousness of

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what they did, but it didn't happen.

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might be some apology for this, for what they did; but it

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wasn't forthcoming.

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Even at this late

I was

I thought maybe there

What you got yesterday was the same old, same old,

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smoke and mirrors and ducking and dodging.

There was no

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remorse.

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thinking about who was going to play them in the movie that is

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going to be made of this case.

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about Mrs. Toffoloni.

I guess they were just too busy out in California

They certainly weren't thinking

But I am, and I think you are thinking

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about her.

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Also, Ladies and Gentlemen, I don't blame Ms. Hahner

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too much for not knowing what she's doing here because I know

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why she's here and I think you know why she's here.

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to repeat the company line.

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Hustler, LFP, Larry Flynt is responsible.

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anyone.

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have sent an army of accountants, but they didn't.

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She's here

She's not responsible for this.
They could have sent

They could have sent Larry Flynt himself.

They could

They sent this one lady so that she could say, Well,

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I'm not sure about what all that means.

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me what LCF means when the fella testified his name is Larry

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Claxton Flynt.

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I think you should blame them too for sending her to face the

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music, to face you on the day of reckoning.

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She couldn't even tell

I don't blame her entirely.

I blame them.

And

What Mrs. Hahner couldn't deny, the documents about

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Hustler's income, about their net worth.

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that I put in evidence, Plaintiff's Exhibits 9, 11, 13, 14 and

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15 which you will have in a few moments when you think about

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the amount of punitive damages that should be awarded.

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these documents once again speak volumes.

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than I could.

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This is a pornographic empire.

That's the documents

And

They speak louder

It makes millions.

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You will see that on these pieces of paper that they produced

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in this case.

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decision to publish these photographs, these 24-year-old

And it all belongs to the guy who made the

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photographs of this dead woman, seven months after her death

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for his own financial gain.

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That's what it's all about.

But, Ladies and Gentlemen, that's really beside the

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point because Judge Thrash will tell you in a few moments that

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the purpose of punitive damages which you have announced in

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your verdict yesterday you intend to award, the purpose of

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punitive damages is to punish the Defendant for wrongful

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conduct and to deter the Defendant, to prevent the Defendant

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from doing the same thing again to somebody else in the

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future -- to punish and to deter, to punish and to deter.

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And in order to do that, you get to take into

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consideration the Defendant's financial resources because it

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doesn't take the same amount of money to punish a fella who

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makes a hundred dollars a week as it does to punish the guy who

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makes a million dollars a week.

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take into consideration the Defendant's financial resources as

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to what's going to be enough.

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So, obviously, you have to

We know that Hustler -- that LFP that owns Hustler

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who LFP, the Defendant in this case, makes -- is worth millions

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upon millions of dollars.

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it in a few minutes.

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her this.

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the tip of the iceberg.

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and the videos and the movies and all the other stuff.

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just Hustler Magazine and a few other magazines, Beaver Hunt

I didn't make that up.

You'll see

And Ms. Hahner testified -- I didn't ask

Hustler's own lawyer asked her this.

This is just

It's not the casinos and the gambling
This is

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and those kinds of things that go into making up LFP.

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When I was asking her yesterday about the finances of

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the company, she didn't seem to know much.

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know what the initials LCF mean.

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asking questions, she all of a sudden became a financial

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expert.

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She didn't seem to

But when Hustler's lawyer was

But here's where we are.

That doesn't matter.

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of that is smoke and mirrors.

This is the truth.

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All

These are

their own documents, and here's where we are in this case.

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You have to ask yourselves one question:

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will it take to send a message to Hustler Magazine not to do

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this again?

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How much

That's the question you have to ask yourselves as a

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group:

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that they won't do this to another family somewhere down the

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road?

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How much will it take to make sure as sure as you can

Obviously, you weren't fooled by that nonsense that

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Larry Flynt didn't make the decision to publish these

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photographs.

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make a person like that realize that he can't get away with it,

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he just can't get away with it, you are not going to let him

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get away with it?

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Obviously, he did.

So what's it going to take to

Now, again, this is not about people being able to

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look at Hustler Magazine.

The men and women who want to pose

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in Hustler Magazine and the people who want to read that

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magazine, that's fine with me.

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whatever they want.

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dead daughter's photograph in there without her permission,

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photographs they knew she never wanted published, photographs

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they knew she didn't want published.

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I think you care about it too.

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I don't care.

They can do

But I do care when they put my client's

I do care about that, and

It's not about the First Amendment.

It's not about

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who can read what they want to read.

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somebody's image and using it for your own financial gain.

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It's about taking

So, again, the question you have to ask each other:
What's it going to take?
You've got to take the financial incentive away from

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Hustler Magazine.

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the financial incentive away.

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of money to me.

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lot of money to you.

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to Hustler Magazine it's nothing.

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according to the documents.

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2008 when this happened was about 200 million dollars.

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Mrs. Hahner didn't know what it is now.

But, I mean, you can't

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dodge the black and white on this page.

And that's after all

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expenses, all deductions, including the taking out the money

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from one pocket and putting it in the other that Larry Flynt is

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engaged in.

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That's the only answer.

You've got to take

A few million dollars is a lot

It's a lot of money to Mrs. Toffoloni.

It's a

It's a lot of money to most people.

But

They make that in a week

The net worth of that company in

So, again, what's it going to take?

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Well, the first part of that answer is it's entirely

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up to you.

You're the jury.

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community.

You're the voice of the community.

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decide.

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you get to decide what that number is.

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You're the conscience of the

It's not a law question.

So you get to

It's a jury question.

So

What are you going to use to guide you in your

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decision as to how much it will be to send a message to Hustler

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Magazine in this case?

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I can suggest an amount to you, but it's just my

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opinion.

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evidence, and I think it's rational.

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the conscience of the community.

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It's my suggestion.

I think it's based on the
But it's your decision as

Ms. Hahner, the corporate vice president, the company

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representative, the lady they sent out here, didn't know what

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the company is worth today.

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worth $196,037,000.

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200,000,000.

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is about $10,000,000.

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But we know that in 2008 it was

That's, you know, pretty close to

Ten percent of that is $19,000,000.

Five percent

One percent is about $2,000,000.

Well, one percent gets into the category where I told

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you I didn't think that was enough to send the message.

That's

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water off a duck's back.

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impression on anybody out there.

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the net worth is something that will register out in

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California.

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will get their attention as much as anything will ever get

That's not going to make an
I think 5 to 10 percent of

I think it's something that will send a message,

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their attention.

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Sitting together as the jury in this case, you are

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the conscience of this community.

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character Jiminy Cricket said in everything you do let your

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conscience be your guide, and that's what is going on here.

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That's what you get to do.

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your guide in this case.

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I remember the Walt Disney

You get to let your conscience be

And, once again, I place Mrs. Toffoloni in your
hands; and I feel comfortable doing that.

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Thank you.

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THE COURT:

Mr. Bauer?

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MR. BAUER:

Thank you, Your Honor.

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Well, good morning once again and probably for the

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last time, let's hope.

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We have heard, we acknowledge, we accept your

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verdict.

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are disappointed.

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deliberate and thoughtful; and my client and I very much

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appreciate exactly how much time and care that you, each of you

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put into this important process.

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Obviously, it's not what we hoped for.

Obviously, we

But it is clear that your verdict is

You have heard a lot about First Amendment this week

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and significance of the First Amendment in this case, and I'm

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going to talk about it just a very little bit more.

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have also by your commitment and your thoughtful assessment of

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the issues in this case and the questions that you submitted

But you

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and the time that you devoted to your deliberations made it

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clear that you have proven and confirmed for my client and for

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me the equal importance and significance of the Seventh

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Amendment, the right to a jury trial.

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The significance of your compensatory damages award

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is recognized by the publishers of Hustler Magazine.

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Ms. Hahner may not have said that on the stand yesterday, but

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that's not what yesterday afternoon's mini trial was about.

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And it wasn't about the time or the place for her to speak to

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Mr. Decker and satisfy his emotional need.
But what your award means is that Nancy Benoit's

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family will be compensated far more than any other celebrity in

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the history of Hustler Magazine has ever been compensated for

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their images; and that award has sent a message to Hustler

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Magazine, a message that it receives loud and clear as will all

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other publishers in the industry.

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that Hustler should ever pursue again.

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This is not the type of news

Please consider when you deliberate once more that a

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disproportionate punishment would not serve the interests of

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justice and will inevitably chill our access, your access, my

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access, everyone's access to some speech, some information that

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we can all agree is valuable and worth protecting.

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this reason, there is still some law you must follow when

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making your next decision.

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And for

The judge will tell you that what you do next if it

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follows the applicable law of our great land must not be based

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on who and what Hustler Magazine is, how much you disapprove of

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or dislike its message or its publisher or its owner, but

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instead what you do next must have a clear and convincing and

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unequivocal connection to the single wrong that this trial has

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been about and nothing else.

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So I do ask you humbly and with deference to the

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significance of the award that you have already made to please

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also consider the following in your deliberations.

Please

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consider that Hustler Magazine's publication of the Nancy

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Benoit feature did not, in fact, produce a windfall to Hustler

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Magazine.

Millions were not reaped by this mistake in

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judgment.

And you have the sales figures you need and the

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testimony you need to evaluate that point.

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Let me just briefly reference Mr. Decker's suggestion

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to you that you have net worth evidence.

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have is a balance sheet.

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That is not net worth.

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a large number and assign to it a significance that it doesn't

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have and the evidence certainly doesn't support.

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You don't.

All you

It shows assets and liabilities.

And I urge you not to be distracted by

Please also consider that once it received

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Mr. Decker's letter on January -- mid-January of 2008 Hustler

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did not do nothing.

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recall magazines that had already been on the stands for

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several weeks and the Court told it two weeks later that it did

While Hustler undisputedly did not try to

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not need to do so, Hustler Magazine did do what was within its

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direct power and control to do to lessen the impact of the

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story on the Plaintiff.

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It removed the images from any Hustler or

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Hustler-related websites.

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foreign licensees who had not published the magazine so that

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the story could not be published further.

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back issues even though it did not believe at the time that it

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had the legal obligation to do so.

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It pulled the content from its

And it destroyed the

Finally, I would ask you to please consider once

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again the fact that by necessity in order to preserve our way

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of life in this country the boundaries of the First Amendment's

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protections for the press and for each of us individually are

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flexible and lasting.

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not a clearly defined marker or barrier.

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a drug manufacturer which deliberately conceals harmful side

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effects of its drug or an investment advisor who steals from

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his clients, to excessively punish a publisher, even one that

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like Hustler lives on the fringes, for mistaking the limits of

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our tolerance for some viewpoints will inevitably shrink the

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boundaries of the First Amendment protections for all of us.

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And to that point, please remember again that our best legal

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minds disagree about where those lines are drawn.

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Where the breaking point lies is simply
And unlike punishing

So let me say through your -- again, through your
careful deliberation, your reasoned and purposeful

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considerations of the evidence and the law of this land

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reflected in the size of your compensatory award and your

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decision to award punitive damages, Hustler's publishers have

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heard your message loud, clear, convincingly and unequivocally.

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And I would respectfully submit to you that there is no further

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need in this case for a windfall award, and the amounts that

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you have just been asked to award are just that.

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You have proven yourselves this week to be the right
kind of jury for this job.

You have adhered to the rule of

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law, and you have shown deference to the important

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constitutional interests at stake in this case.

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needed once again now.

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And that is

On behalf of Hustler Magazine, I thank you for your

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time, your attention, your careful deliberation; and it's been

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an honor to argue this case to you.

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Thank you.

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THE COURT:

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MR. DECKER:

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I'll say again one more time this has never been

Mr. Decker?
Good.

I'll be brief.

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about the First Amendment.

I'm sure my colleague, Mr. Bauer,

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has gotten the message.

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been about the First Amendment.

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are willing to pose nude in their magazine.

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people who are willing to read their magazine.

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can't do is take someone's image without their permission and

I know Hustler hasn't.

This has never

Hustler can find people who
They can find
But what they

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put it in their magazine and do that knowingly, and that's what

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this case is all about.

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Mr. Bauer said millions were not reached, and he

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wants you to look at the sales figure, and I do too.

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Defendant's Exhibit -- I'm not sure what the exhibit number is.

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You will have it.

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were reached, and the sad fact is it's still out there.

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still out there on the internet and always will be.

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is enduring and will go on forever.

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It's got a blue sticker on it.

They're

Millions
It's

This thing

The boundaries, Ladies and Gentlemen, are clear.

You

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don't expose unwilling women and their families to this kind of

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exposure.

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consent.

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And I ask you to take that into consideration.

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You just -- without their permission, without their
You just don't do it for your own financial gain.

Thank you.

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CHARGE TO THE JURY - PUNITIVE DAMAGES

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THE COURT:

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Ladies and Gentlemen, pursuant to your

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verdict yesterday, the law will allow you in your discretion to

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assess punitive damages against the Defendant as punishment and

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as a deterrent to others.

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must be mindful that punitive damages are meant to punish the

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Defendant for the specific conduct that harmed the Plaintiff in

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the case and for only that conduct.

When assessing punitive damages, you

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For example, you cannot assess punitive damages for

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the Defendant being a distasteful individual or business.

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Punitive damages are meant to punish the Defendant for this

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conduct only and not the conduct that occurred at another time.

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Your only task is to punish the Defendant for the actions it

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took in this particular case.

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damages should be assessed against the Defendant, you may

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consider the financial resources of the Defendant in fixing the

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amount of such damages.

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If you find that punitive

Ladies and Gentlemen, we will provide you with a

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verdict form to assist you in making that decision.

I forgot

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to do it earlier, so it'll take me a minute to prepare it.

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you will have one in a few minutes with you in the jury room.

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So I will ask you to go with the court security officer to your

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jury room and resume your deliberations.

But

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(Jury exited the courtroom.)

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THE COURT:

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MR. DECKER:

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THE COURT:

Mr. Bauer, any objections to the charge?

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MR. BAUER:

No, Your Honor.

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Your Honor, are you going to send a copy of the

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Mr. Decker, any objections to the charge?
No, Your Honor.

charge back with the jury?

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THE COURT:

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The verdict form I suggest is:

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Yes, sir.
We, the jury, award

the sum of blank dollars as punitive damages.

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MR. DECKER:

That's acceptable to the Plaintiff, Your

Honor.

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MR. BAUER:

Yes, Your Honor.

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THE COURT:

All right.

I'll have that typed up in

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just a minute and send it back to the jury, and we'll be in

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recess to await the verdict of the jury.

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(A recess was taken from 10:03 a.m. to 11:52 a.m. to

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await the verdict of the jury.)

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THE COURT:

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All right.

I understand we have a

verdict.

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We're ready for the jury.

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(Jury entered the courtroom.)

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THE COURT:

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Mr. Cooper, has the jury reached a

verdict?

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THE FOREPERSON:

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THE COURT:

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All right.

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VERDICT - PUNITIVE DAMAGES

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I'll ask the clerk to publish the

verdict.

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If you'll hand the verdict to the court

security officer, he will hand it to the clerk.

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Yes, sir, we have.

THE CLERK:

-

-

In the United States District Court for

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the Northern District of Georgia, Atlanta Division, Maureen

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Toffoloni, as administrator and personal representative of the

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estate of Nancy E. Benoit, Plaintiff, versus LFP Publishing

2

Group, LLC, doing business as Hustler Magazine, Civil Action

3

File Number 1:08-CV-421-TWT, Verdict:

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We, the jury, award the sum of $19,603,600 as

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punitive damages.

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by the foreperson.

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This 17th day of June, 2011; and it's signed

THE COURT:

Counsel, you wish to inspect the verdict

form?
MR. DECKER:

Yes, Your Honor.

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(Attorneys inspected the verdict form.)

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THE COURT:

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discharged?

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MR. DECKER:

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THE COURT:

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Anything further before the jury is

I'm sorry, Your Honor.

I didn't hear.

Anything further before the jury is

discharged?

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MR. DECKER:

No, Your Honor.

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MR. BAUER:

No, Your Honor.

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THE COURT:

All right.

Ladies and Gentlemen, let me

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ask you to step back into your jury room, please.

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(Jury exited the courtroom.)

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THE COURT:

Typically, I go back and thank the jurors

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for their service, answer any questions that they may have if

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they're appropriate, tell them they are free to talk about the

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case to anybody they want to.

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then I'm going to come back in here and I'm going to rule on

And I'm going to do that, and

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the Defendant's motion for judgment as a matter of law that I

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took under advisement sometime this week.

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So I'll be back in a few minutes.

Court's in recess

until further order.
MR. DECKER:

Judge, will the lawyers be allowed to

talk to the jury?

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I'm not clear.

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THE COURT:

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MR. DECKER:

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THE CLERK:

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(A short recess was taken.)

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THE COURT:

I tell them they can.
Okay.

Thank you.

Court is in recess until further order.

All right.

Mr. Bauer, you want to say

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anything else on your motion for judgment as a matter of law on

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punitive damages?

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MR. BAUER:

No, Your Honor.

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THE COURT:

Mr. Decker?

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MR. DECKER:

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I mean, I think there was clearly enough evidence to

Yes, Judge.

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go to the jury on punitive damages at this stage in which the

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motion was made in the nature of the judgment -- or, rather, a

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motion for directed verdict or judgment as a matter of law.

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That's what was before the Court.

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evidence to go to the jury.

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jury question.

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Clearly there was enough

The question of intent is always a

That question has been answered.

But if you go back to the point at which the motion

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was made, the state of the record at that point in time, was

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that sufficient to send the case to the jury to determine the

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question of intent, and I think it clearly was.

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should be denied.

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THE COURT:

And so it

Well, I think the question of whether

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there was evidence that would support any award of punitive

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damages is a pretty close one.

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instructions had to find that the Defendant acted unreasonably

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in publishing the photographs based upon its claim that they

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were newsworthy, and I think that under the decision of the

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11th Circuit in this case the jury was probably authorized to

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reach that conclusion.

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The jury necessarily given my

I will point out that there's a lot of evidence on

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the newsworthiness issue that was introduced during the trial

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of this case that was not before me when I ruled on the motion

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to dismiss.

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part to try to address that issue just based on the pleadings

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rather than a full evidentiary record.

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the bridge long, long ago.

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And in hindsight, it was probably a mistake on my

But that's water under

The other question, though, however, is was there

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evidence of a specific intent to harm the Plaintiff.

And if

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you want to address that, Mr. Decker, I'll hear from you.

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MR. DECKER:

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I think under the Court's charge it was made plain

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Yes, sir.

that there was evidence to support that.

You know, as I think

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I diagramed for the jury, if the Defendant intended the

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consequences of its action and that is that it would publish

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without specific permission, and if they did it out of an

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interest, a motive of interest which in this case was their own

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financial interest then that's sufficient under Georgia law to

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support a finding of specific intent.

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And, again, Your Honor, I think clearly it's a jury

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question which was answered in the affirmative.

The issue of

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weighing the evidence is not the function of the Court.

It's

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whether there's legally sufficient evidence, and I believe

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there was.

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jury found that because of their conduct they had specifically

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intended the consequences of their action and did so out of

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their own financial interest.

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with respect to that second box that they checked yes.

And, again, it was -- it's self-fulfilling that the

And that's where you need to be

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THE COURT:

What do you say, Mr. Bauer?

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MR. BAUER:

Your Honor, I think Mr. Decker is arguing

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that anybody who intends to take an act can be deemed to have

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intended to specifically harm anyone who necessarily suffers a

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consequence from the act; and that's very different than acting

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with the specific intent to harm an individual.

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fact that the editors of Hustler Magazine intended to publish

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pictures cannot automatically impute a specific intent to harm

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the Plaintiff who Mr. Decker, you know, admitted in his

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argument that the editors of Hustler didn't even know existed.

And merely the

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There's no evidence that the editors of Hustler knew

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that Nancy Benoit had any family that survived her that enjoyed

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the rights of publicity.

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that can support a suggestion that Hustler's editors

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specifically targeted the Toffolonis with their decision to

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publish.

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evidence to the contrary, that misguided and misjudged as it

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may have been their decision was based on their what I

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understand the jury's found to be an unreasonable belief that

There's just nothing in the record

In fact, I think that the record is replete with

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they had a legally privileged, constitutionally privileged

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right to publish.

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The First Amendment cannot countenance Mr. Decker's

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interpretation of what kind of evidence supports a showing of

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specific intent to harm.

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vulnerable if his position has credit, has merit.

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be something more to support that finding.

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something specific.

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Every publisher in our country is
There has to

There has to be

That's why the word specific is there.

THE COURT:

All right.

I'm going to grant the motion

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for judgment as a matter of law with respect to the issue of

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whether there was specific intent on the part of the Defendant

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to harm the Plaintiff.

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would support that finding.

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I don't think there's any evidence that

The evidence is that the Defendant didn't even know

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who Mrs. Toffoloni was until they received Mr. Decker's letter.

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They had already published the magazine.

They had already made

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the editorial decisions to publish the pictures.

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evidence of motive in that was that they wanted to sell

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magazines in my opinion.

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letter, that did not convert that motive into a specific motive

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to injure Mrs. Toffoloni.

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The only

And even after Mr. Decker wrote his

There was a great deal of evidence that the Defendant

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published the pictures with the belief that it was a matter of

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newsworthiness.

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editor and by Mr. Otten who testified that other publications

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contacted him seeking photographs of Ms. Benoit from her early

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career because of the media news storm that surrounded her

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death.

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intent.

That was supported by the testimony of the

So I'll grant the motion with respect to the specific

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That means that the $250,000 cap applies.

So I'll

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direct the clerk to enter a judgment in favor of the Plaintiff

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in the amount of $125,000 in compensatory damages and $250,000

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in punitive damages.

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And I will say that in my opinion given the factors

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set forth in State Farm versus Campbell that I would probably

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have had to do that anyway even if there wasn't the cap under

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Georgia law.

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All right.

Anything further, gentlemen?

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MR. DECKER:

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MR. BAUER:

Nothing from the Defendant, Your Honor.

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THE COURT:

All right.

Note my exception, Your Honor.

Thank you very much.

Court's

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in recess until further order.
(Proceedings adjourned at 12:13 p.m.)

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C E R T I F I C A T E

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UNITED STATES DISTRICT COURT:

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NORTHERN DISTRICT OF GEORGIA:

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I hereby certify that the foregoing pages, 500

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through 524, are a true and correct copy of the proceedings in

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the case aforesaid.

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This the 6th day of July, 2011.

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Susan C. Baker, RMR, CRR
Official Court Reporter
United States District Court