Thursday, January 8, 2009

Is Pac-Man Jones libel proof?

The TortsProf Blog reports today that Pac-Man Jones has announced he will sue ESPN in response to a report that he instigated a strip-club shooting in 2007. I assume the report was false, of course, because otherwise there simply would be no basis for the claim to begin with. But, as Mike Florio comments on the claim would raise the always interesting question of whether the plaintiff is "libel proof." "Libel proof-ness" is an interesting concept that has been adopted by a number of jurisdictions. Essentially, it states that a plaintiff should not be allowed to waste a court's time to try to recover damages to his or her reputation if the reputation is already so low that it can't be "damaged" much more. There is no point in wasting the court's time and resources in trying a case that is likely to result in a nominal recovery -- whether it is the traditional $1 or a very small amount awarded by a jury. It makes logical sense. There are a couple of objections to the concept, though. First, it eliminates the right of the plaintiff to seek redress. If the plaintiff wants to spend a million dollars to recover one, well, maybe that's their choice. Maybe they are not interested in money; maybe they want a public apology, or publicity about the conduct of the defendant. Then the question becomes whether the court system is the proper forum, which is, of course, a whole different debate. Is a case that is likely to result only in nominal damages frivolous by definition? Second, dismissing the case because the plaintiff is libel proof eliminates the possibility that the plaintiff may be awarded punitive damages. It is possible that a jury may want to impose punitives on the defendant for its outrageous conduct even if the plaintiff suffers minor injuries. This happened in one of the first cases where a court discussed the libel proof doctrine. If I remember correctly, it involved the publisher of Penthouse magazine. At trial, the jury found for the plaintiff and found damages in the amount of $1 for compensatories but millions for punitives. Obviously, again, this leads to another debate on whether a case like that is the proper way to impose a penalty for misconduct on the part of the defendant -- particularly when the value imposed as the penaly is going to benefit a plaintiff the jury found unworthy to get damages in the first place. If a case that is likely to result in nominal compensatory damages is frivolous by definition, is it not frivolous if it has a chance to generate punitive damages? Food for thought. Thanks to Torts Prof Blog for the update.

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