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Appellate Court of Illinois

2010-12

Leyshon v. Diehl Controls North America, Inc. ( 2010 )

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                                         FIRST DIVISION
December 27, 2010
No. 1-09-1848
WALLACE C. LEYSHON,          )    Appeal from the
)    Circuit Court of
Plaintiff-Appellee,   )    Cook County.
)
v.                    )    No. 06 L 3745
)
DIEHL CONTROLS NORTH AMERICA,)
INC. and CHRISTOPH WEIGAND, )     Honorable
)    Dennis J. Burke,
Defendants-Appellants.)    Judge Presiding.
PRESIDING JUSTICE HALL delivered the opinion of the court:
The plaintiff, Wallace C. Leyshon, brought suit against the
defendants, Diehl Controls North America, Inc. (DCNA) and
Christoph Weigand,1 alleging their breach of an employment
contract, violation of the Illinois Wage Payment and Collection
Act (820 ILCS 115/1 et seq. (West 2006)), and defamation.
Following trial, the jury returned a verdict for the plaintiff
and awarded damages.     On the defamation claim, the jury awarded
the plaintiff $2 million in compensatory damages and $10 million
in punitive damages.     The trial court denied the defendants'
posttrial motion but granted their request for a remittitur,
reducing the punitive damages award to $6 million.
On appeal, the defendants challenge only the finding of
liability on the defamation claim and the amount of the damages
awarded on that claim.     They contend that: (1) under the
1
Christoph Weigand is referred to as both "Dr. Weigand" and
"Mr. Weigand" in the record.     We will refer to him as "Dr.
Weigand."
No. 1-09-1848
innocent-construction rule, there was no defamation per se, as a
matter of law, (2) "invited defamation" was a complete defense to
the defamation per se claim; (3) the compensatory damages award
was excessive, and (4) the punitive damages award was excessive
under Illinois common law and violated due process.
BACKGROUND
I. Facts
Diehl AKO Stiftung & Company, KG (Diehl), located in
Germany, is the parent company of DCNA.    The plaintiff had been
president of DCNA since 2001.   The plaintiff's employment was
pursuant to a written contract.    His most recent contract was
effective January 1, 2005, through December 31, 2007.    The
contract was signed on behalf of Diehl by Dieter Neugebauer,
chairman of the supervisory board of Diehl, and Dr. Weigand, a
member of the supervisory board.
Relevant to the defamation allegations, the contract
provided as follows:
"The Company shall have the right to immediately
terminate this Agreement and employee's employment for
'cause' without prior notice.     'Cause' shall include gross
negligence, gross neglect of duties, gross insubordination
and willful violation of any law applicable to the conduct
of the Company's business and affairs."
On February 1, 2006, Dr. Weigand informed the plaintiff that he
was terminated for cause.
2
No. 1-09-1848
A. Liability Evidence
The parties do not dispute the facts surrounding the
utterance of the words or the words themselves the plaintiff
alleged defamed him.   Those facts are summarized below.
On February 1, 2006, the plaintiff was in his office at
DCNA.   At 11 a.m., Heinz Ruediger Kraemer, chief financial
officer of DCNA, entered the plaintiff's office accompanied by
Dr. Weigand, the new chairman of DCNA.    Almost immediately, Dr.
Weigand announced to the plaintiff that he was fired.    When the
plaintiff asked the reason, Dr. Weigand replied that he was not
required to give a reason.   Citing the investment of his time and
his career in DCNA, the plaintiff continued to press Dr. Weigand
for a reason for his termination.    Again, Dr. Weigand told the
plaintiff he did not have to tell him the reason.
After summoning John Dugan, a part-time human resources
employee, to serve as a witness, the plaintiff requested that Dr.
Weigand repeat what he had stated to the plaintiff.    Dr. Weigand
repeated that the plaintiff was terminated.    When the plaintiff
then asked what he was terminated for, Dr. Weigand responded,
"'for cause.'"    When the plaintiff expressed incredulity, Dr.
Weigand stated, "'You are terminated for cause under the terms of
your employment agreement.'"   The plaintiff responded, "'You are
telling me that you are firing me for gross insubordination, for
gross misconduct, for gross negligence and willful violation of
the law?'" Dr. Weigand responded, "'Yes'" and would not elaborate
3
No. 1-09-1848
further.    When the defendant asserted he had rights as an
employee, Dr. Weigand informed him that Diehl was fully committed
to this decision and would commit its "ample" resources to
contest any steps the plaintiff might take.    The plaintiff was
ordered to vacate his office immediately.
B. Damages Evidence
The plaintiff testified as follows.    After his termination,
he returned home and informed his wife that he had been
terminated for cause.    She became extremely upset.   The plaintiff
found it very humiliating to have to tell his teenage son that he
had been fired for cause.    Two weeks later, he attended an
employees dinner at which "nobody could look [him] in the eye."
The plaintiff explained that he took his reputation very
seriously because it was the basis of his career in the industry
in which he worked.    The plaintiff's reputation impacted how
effective he was in business and whether he appealed to business
people.    Given his experience, the companies he had worked for
and how he was able to attract people to work for him, his
reputation was very valuable.    He was shocked by his termination
because there was no basis for it.    He was very humiliated to be
terminated for cause.    The view in the United States is that
termination for cause means it is felony based or involves sexual
misconduct.
According to the plaintiff, the alleged defamatory statement
impacted his standing in the business community and his ability
4
No. 1-09-1848
to find work.   He contacted several of the companies he had done
business with while at DCNA, as well as several competitors.
Despite repeated attempts to make contact with people at these
companies, he received no response from any of them.   Even the
people he had regularly communicated with prior to his
termination did not return his calls.
Kathleen Leyshon, the plaintiff's wife, testified as
follows.   Over the years, Mrs. Leyshon had been involved with the
plaintiff's various business ventures.   From her attendance at
industry meetings and conventions, she observed that the
plaintiff was highly regarded among the leaders in his industry.
The plaintiff was honored with the Illinois Entrepreneur of the
Year award, as well as a supplier award from Maytag, which was
viewed as beneficial to DCNA.
According to Mrs. Leyshon, when the plaintiff returned home
after his termination, he did not look well and was quite pale.
When he told her the reasons for the termination, she was shocked
and found it unbelievable.   After building up a very good
reputation, the whole experience of being terminated and having
to remove his belongings from his office was extremely traumatic,
upsetting and humiliating for the plaintiff.   At a party the
plaintiff and she organized to say goodby to the employees, many
of them expressed concern for the plaintiff and his family.
The plaintiff also presented evidence that his termination
was the result of the defendants' premeditated scheme to rid
5
No. 1-09-1848
themselves of the plaintiff.   The plan required that the
plaintiff be fired for cause, even though the defendants knew
there was no basis for doing so.       Mr. Neugebauer testified that
Dr. Weigand wanted the plaintiff terminated for cause in order to
avoid having to pay him the sums he would be entitled to under
his contract.   In addition, the plaintiff had voiced concern to
Dr. Weigand over certain of Diehl's tax practices.
Richard Sbarbaro, an executive search management consultant,
testified regarding the effect termination for cause had on the
plaintiff's ability to find employment.      Based on Mr. Sbarbaro's
experience, the plaintiff would not be considered for a
comparable position because of the implications of the
termination for cause.    Termination for cause referred to gross
misconduct, significant financial malfeasance, sexual harassment
or drug use on the job.   Mr. Sbarbaro would never recommend a
candidate who had been terminated for cause to a prospective
employer.
Based on his 30 years of experience and his sensitivity to
such issues, Mr. Sbarbaro believed that the plaintiff's
termination for cause was known in the market place.      He
explained that it was very difficult to maintain confidentiality
in business.    The fact that the plaintiff's significant contacts
refused his telephone calls signaled that the plaintiff's
termination for cause was known outside of DCNA.      In addition, it
had been 2 1/2 years, and the plaintiff had yet to secure gainful
6
No. 1-09-1848
employment.
According to the defendants' witnesses, following the
plaintiff's termination from DCNA, DCNA customers were told that
the plaintiff was no longer with DCNA but were not told that the
plaintiff was discharged for cause.       While searching for a
replacement for the plaintiff, Dr. Weigand told a recruiter that
the plaintiff had been terminated suddenly because, while sales
were increasing, profits were not.
The jury returned a verdict finding in favor of the plaintiff
and against the defendants on the claim of defamation per se.2
The jury awarded the plaintiff $2 million in compensatory damages
and $10 million in punitive damages.       The trial court denied the
defendants' posttrial motion but granted a remittitur of the
punitive damages award and reduced the award to $6 million.       The
defendants appeal.
ANALYSIS
I. Innocent-Construction Rule
The defendants contend that the denial of their motion for a
judgment n.o.v. was error because, under the innocent-
2
The jury rejected the defendants' position that the
plaintiff's termination was "for cause" as defined in the
employment contract and awarded damages for breach of the
employment contract.    The jury also found for the plaintiff on
the defendants' counterclaim alleging breach of fiduciary duty
and unjust enrichment.
7
No. 1-09-1848
construction rule, Dr. Weigand's statement, "'You are terminated
for cause under the terms of your employment agreement,'" was not
actionable.3
A. Standard of Review
The preliminary construction of an allegedly defamatory
statement is a question of law.     Therefore, our review is de
novo.     Tuite v. Corbitt,

224 Ill. 2d 490

, 511,

866 N.E.2d 114

(2006).
B. Discussion
"A statement is defamatory if it tends to harm a person's
reputation to the extent that it lowers that person in the eyes
of the community or deters others from associating with that
person."

Tuite, 224 Ill. 2d at 501

.   Illinois recognizes five
categories of statements that are defamatory per se, two of which
are implicated in this case: statements imputing an inability to
perform or want of professional integrity in performing
employment duties and statements imputing a lack of ability or
that otherwise prejudice a person in his profession or business.

Tuite, 224 Ill. 2d at 501

-02.     Even if a statement falls into one
of the per se categories, the statement will not be actionable if
3
In their motion for partial summary judgment, the
defendants argued, inter alia, that, under the innocent-
construction rule, Dr. Weigand's statement could not support an
action for defamation per se as a matter of law.      The trial court
denied their motion.
8
No. 1-09-1848
it is reasonably capable of an innocent construction.

Tuite, 224 Ill. 2d at 502

.
In Green v. Rogers,

234 Ill. 2d 478

917 N.E.2d 450

(2009),
our supreme court explained the innocent-construction rule as
follows:
"Under the 'innocent-construction rule,' a court must
consider the statement in context and give the words of the
statement, and any implications arising from them, their
natural and obvious meaning. [Citation.]   Indeed, this court
has emphasized that the context of the statement is critical
in determining its meaning, as a given statement may convey
entirely different meanings when presented in different
contexts. [Citation.]   If the statement may reasonably be
innocently interpreted, it cannot be actionable per se.
[Citation.] Stated differently, 'a statement "reasonably"
capable of a nondefamatory interpretation, given its verbal
or literary context, should be so interpreted.   There is no
balancing of reasonable constructions ***.' [Citation.]    At
the same time, when the defendant clearly intended and
unmistakably conveyed a defamatory meaning, a court should
not strain to see an inoffensive gloss on the statement.
[Citation.]" (Emphasis in original.)

Green, 234 Ill. 2d at 499-500

, quoting Mittelman v. Witous,

135 Ill. 2d 220

, 232,

552 N.E.2d 973

(1989), abrogated on other grounds in Kuwik
v. Starmark Star Marketing & Administration, Inc.,

156 Ill. 9

No. 1-09-1848
2d 16,

619 N.E.2d 129

(1993).
In Skopp v. First Federal Savings of Wilmette,

189 Ill. App. 3d

440,

545 N.E.2d 356

(1989), the reviewing court held that "for
cause" was not actionable because the words were capable of an
innocent construction.     The plaintiffs' employment at First
Federal was terminated.    In speaking with members of a placement
firm hired by First Federal to assist the plaintiffs, First
Federal's vice-president stated that the plaintiffs had been
terminated for cause.    According to the plaintiffs, in the
savings and loan industry, the term "for cause" meant that the
plaintiffs had engaged in misconduct.    The trial court granted
summary judgment to the defendants, and the plaintiffs appealed.
The reviewing court affirmed the summary judgment.    The
court determined that the plaintiffs failed to establish that the
placement firm members had any specialized knowledge of the
savings and loan industry so as to understand the industry
meaning of "for cause."    The court further found that, even if
the industry definition was applicable, besides serious instances
of misconduct, the definition of "for cause" contained in the
federal rules and procedures listed several reasons for
termination, which did not impart unfitness or want of integrity
and which would not prejudice someone in his profession.       Skopp,

189 Ill. App. 3d

at 446.
Noting that courts in Kansas and New York had found the
statement terminated "for cause" to be actionable, the court in
10
No. 1-09-1848
Skopp agreed with the court in Terry v. Hubbell,

22 Conn. Supp. 248

167 A.2d 919

(1960), explaining as follows:
"[In Terry], it was held that the statement was not libel
per se because '[t]aken in their "natural and ordinary
meaning," the words "discharged for cause" mean no more than
that the plaintiff was released or dismissed from an office
or employment for some undisclosed circumstance which
operated to produce that effect.'"    Skopp,

189 Ill. App. 3d

at 445, quoting

Terry, 22 Conn. Supp. at 256

, 167 A.2d at
923.
The plaintiff maintains that the result in Skopp must be
viewed in light of subsequent Illinois decisions applying the
innocent-construction rule.   In Bryson v. New America
Publications, Inc.,

174 Ill. 2d 77

672 N.E.2d 1207

(1996),        our
supreme court emphasized that the innocent construction must be
reasonable.   The court explained that the innocent-construction
rule did not apply simply because the allegedly defamatory words
were "capable" of an innocent construction.    The court explained
further as follows:
"In applying the innocent construction rule, courts must
give the allegedly defamatory words their natural and
obvious meaning.   [Citations.]   Courts must therefore
interpret the allegedly defamatory words as they appeared to
have been used and according to the idea they were intended
to convey to the reasonable reader.    [Citation.]   When a
11
No. 1-09-1848
defamatory meaning was clearly intended and conveyed, this
court will not strain to interpret allegedly defamatory
words in their mildest and most inoffensive sense in order
to hold them nonlibellous under the innocent construction
rule."

Bryson, 174 Ill. 2d at 93

.
In Bryson, the court found that it need not determine
whether the term "slut" always implied unchastity.    Given the
context of the statement, the court refused to find that the
defamatory word must be innocently construed as a matter of law.

Bryson, 174 Ill. 2d at 94

.    More recently, the decision in Green,
reemphasized the importance of the context in which the alleged
defamatory words were uttered.    In Green, the supreme court found
that the statement accusing the plaintiff, who had served as a
little league coach and manager, of misconduct and stating that
he abused players, coaches and umpires, was capable of an
innocent construction, given the very broad meanings of
"misconduct" and "abuse," as well as the context in which they
were used.

Green, 234 Ill. 2d at 501-02

.   Since the abuse and
misconduct statements were then followed by assurances that the
plaintiff would be free to assist with activities involving his
son's team, the court found the statements reasonably capable of
an innocent construction.

Green, 234 Ill. 2d at 503

.
In contrast to Skopp, where as long as a word or statement
could be innocently construed, it was nonactionable under the
innocent-construction rule, under Bryson and its progeny, just
12
No. 1-09-1848
because a word may have an innocent meaning does not require that
it be innocently constructed.   The context in which the words or
statement were uttered also must be considered.      In the present
case, the context in which Dr. Weigand's statement was made was
the sudden termination of the plaintiff's employment and Dr.
Weigand's confirmation that the reasons for the plaintiff's
termination were gross insubordination, gross misconduct, gross
negligence and willful violation of the law.
We conclude that, given the context in which Dr. Weigand's
statement that the plaintiff was terminated for cause was made,
the statement cannot reasonably be construed as having an
innocent meaning as a matter of law.
II. The Invited-Defamation Defense
The defendants contend that, as the plaintiff "invited" Dr.
Weigand's statement and even summoned a witness to hear it, the
invited-defamation defense applies and completely defeats the
plaintiff's claim.   The defendants concede that they did not
raise this defense until their posttrial motion.     The defense is
forfeited as explained below.
In Thornton v. Garcini,

237 Ill. 2d 100

928 N.E.2d 804

(2009), our supreme court held that the defendant forfeited his
right to raise the single-recovery rule to bar damages for
emotional distress by raising the rule for the first time in a
posttrial motion.

Thornton, 237 Ill. 2d at 112

.    The defendant
had numerous opportunities to raise the rule: as an affirmative
13
No. 1-09-1848
defense, in pretrial motions in limine, in a motion for a
directed verdict, and during the jury instructions conference.
Due to the defendant's failure to raise the issue before the
entry of the jury's verdict, the plaintiff had no notice or
opportunity to defend against the defendant's claim.   Therefore,
the issue was forfeited.

Thornton, 237 Ill. 2d at 112

.
The defendants maintain that section 2-1202(b) of the Code
of Civil Procedure (735 ILCS 5/2-1202(b) (West 2008)) preserved
their right to raise the defense.    Section 2-1202(b) provides as
follows:
"Relief after trial may include the entry of judgment if
under the evidence in the case it would have been the duty
of the court to direct a verdict without submitting the case
to the jury, even though no motion for directed verdict was
made or if made was denied or ruling thereon reserved."    735
ILCS 5/2-1202(b) (West 2008).
A motion for a judgment n.o.v. may be made in a posttrial motion,
to challenge the plaintiff's failure to prove an element of his
case.   Kennan v. Checker Taxi Co.,

250 Ill. App. 3d 155

, 160,

620 N.E.2d 1208

(1993).
The defendants assert that the invited-defamation defense is
not an affirmative defense, but acts to prevent the plaintiff
from proving the publication, a necessary element of his cause of
action for defamation.   The defendants maintain that, as in
Kennan, section 2-1202(b) preserved their right to raise the
14
No. 1-09-1848
plaintiff's failure to prove publication.   We disagree.
The invited-defamation defense is an affirmative defense.
An affirmative defense is defined as "[a] defendant's assertion
of facts and arguments that, if true, will defeat the plaintiff's
or prosecution's claim, even if all the allegations in the
complaint are true."   Black's Law Dictionary 451 (8th ed. 2004).
Section 11:15 of Illinois Jurisprudence, Personal Injury & Torts
(11 Ill. Jur. Personal Injury & Torts §11:15 (2009)) provides
that where the publication is procured by the plaintiff, it is
not actionable.   Accordingly, where the plaintiff has proven all
the elements of defamation per se, including publication, the
affirmative fact that the plaintiff invited the publication will
defeat the cause of action.   See the Restatement (Second) of
Torts §§583, 584 (1977) (except in the case of honest inquiry or
investigation, consent of the person defamed is a complete
defense to an action for defamation).
The defendants rely on decisions from other jurisdictions,
holding that invited defamation involves a lack of publication.
In Williams v. School District of Springfield,

447 S.W.2d 256

(Mo. 1969), overruled on other grounds by Bass v. Nooney Co.,

646 S.W.2d 765

(Mo. 1983), the court observed that there was no
publication where the defamation was invited by the plaintiff.

Williams, 447 S.W.2d at 268

, relying on 33 Am. Jur. Libel &
Slander §93, at 105-06.   However, that statement is at odds with
both the Restatement and Illinois Jurisprudence that the invited-
15
No. 1-09-1848
defamation defense is a total defense to an action for
defamation.    In Charles v. State Department of Children & Family
Services, District 9,

914 So. 2d 1

(Fla. App. 2005), the court
recognized the general rule that invited defamation was a
complete defense to an action for defamation, but explained that
"Florida has approved this general rule but has couched it in
terms of a lack of 'publication,' one of the elements necessary
to establish a prima facie case of slander."

Charles, 914 So. 2d at 3

.    Therefore, the holding in Charles is peculiar to Florida
law.
As an affirmative defense, the invited-defamation concedes
that there has been publication, as well as the other elements of
defamation, but because it was "invited," the defamation is not
actionable.    Unlike Kennan, the defendants' posttrial request for
a judgment n.o.v. was not based on the plaintiff's failure to
prove a necessary element of his cause of action but on an
affirmative defense, which would have defeated the plaintiff's
cause of action for defamation.    Therefore, section 2-1202(b) did
not preserve the defendants' right to raise the invited-
defamation defense in their posttrial motion.
We further reject the defendants' contention that they had
no opportunity to raise the invited-defamation defense prior to
their posttrial motion because the amended complaint did not set
forth the circumstances in which the alleged defamatory statement
was made.    Once the trial began, the defendants were fully aware
16
No. 1-09-1848
of the circumstances in which the statement was made.     Their
failure to raise the defense in their motion for a directed
verdict or, even after hearing all of the evidence, failing to
request a jury instruction on the defense, belies the defendants'
assertion that their first opportunity to raise the defense was
in their posttrial motion.
As in Thornton, the defendants' failure to raise the defense
of invited defamation prior to the jury verdict, denied the
plaintiff the opportunity to respond to a defense that, if
proven, would have been a complete defense to the plaintiff's
cause of action.   Therefore, the defendants have forfeited the
invited-defamation defense.
III. Compensatory Damages
The defendants contend that the trial court erred when it
denied their motion for a remittitur of the compensatory damages
award.   They maintain that the evidence does not support the $2
million compensatory award.
A. Standard of Review
This court reviews a ruling on a motion for a remittitur for
an abuse of discretion.   Diaz v. Legat Architects, Inc., 397 Ill.
App. 3d 13, 45,

920 N.E.2d 582

(2009).
B. Discussion
Where, as here, a defamatory statement is actionable per se,
the plaintiff is not required to plead and prove actual damage to
his or her reputation to recover damages.

Bryson, 174 Ill. 2d at 17

No. 1-09-1848
87.   As the supreme court explained, "statements that fall within
these actionable per se categories are thought to be so obviously
and materially harmful to the plaintiff that injury to her
reputation may be presumed."

Bryson, 174 Ill. 2d at 87

.    In
addition, "it is often extremely difficult, if not impossible, to
present evidence to support an award of compensatory damages
based on the actual harm sustained."     Gibson v. Philip Morris,
Inc.,

292 Ill. App. 3d 267

, 278,

685 N.E.2d 638

(1997).       Presumed
damages include damages for mental suffering, personal
humiliation, impairment of professional reputation and standing
in the community and for economic loss.

Gibson, 292 Ill. App. 3d at 278

.
The defendants maintain that, in the absence of specific
proof, the plaintiff was not entitled to damages for lost
employment opportunities.   Dr. Weigand testified that no one
outside of the Diehl organization was told that the plaintiff was
terminated for cause.   He also testified that, by letter or in
some cases in a meeting, DCNA's customers were told only that the
plaintiff was no longer with DCNA.
However, Dr. Weigand did not explain what reason was given
for the plaintiff's departure.    There was also evidence Dr.
Weigand told an executive recruiter that the plaintiff's
termination was sudden.   Mrs. Leyshon testified that the DCNA
employees attending the farewell party expressed their concern
for the plaintiff.   The plaintiff testified that people at the
18
No. 1-09-1848
party would not look him in the eye and that his contacts in the
industry no longer returned his calls.    Mr. Sbarbaro testified
that the fact that the plaintiff was terminated for cause would
be hard to keep confidential, as demonstrated by the plaintiff's
lengthy period of unemployment.    In Mr. Sbarbaro's opinion, the
plaintiff would never be able to obtain another executive
position.
The cases relied on by the defendants are distinguishable.
In Zechman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 742 F.
Supp. 1359 (N.D. Ill. 1990), the defamation count was dismissed
based on the innocent-construction rule; the issue of damages was
never reached.   In Vilien v. Department of Education of City of
New York, No. 06-CV-3491 (S.D.N.Y. March 31, 2009), there was no
issue as to damages because the plaintiff failed to prove
defamation.   In Chenoweth v. Maui Chemicals & Paper Products,
Inc., No. 07-00092 DAE-KSC (D. Haw. September 3, 2008), the court
granted summary judgment to the defendants on the defamation
claim where the plaintiff could not identify the defamatory
statements and merely relied on rumors.
The defendants also rely on Soto-Lebron v. Federal Express
Corp.,

538 F.3d 45

(1st Cir. 2008).    In that case, the employee
was discharged after being suspected of sending cocaine in a Fed
Ex package.   The allegation proved false, and the employee sued
claiming, inter alia, damages for defamation.    The court found
that the employee's economic and emotional problems resulted from
19
No. 1-09-1848
the fact of termination and were not connected to his libel
claim.   The court pointed out that there was no evidence that the
employee's subsequent employers ever saw the libelous statements
made by Fed Ex.

Soto-Lebron, 538 F.3d at 66-67

.    Unlike Soto-
Lebron, the testimony of the plaintiff, his wife and Mr. Sbarbaro
provided evidence that knowledge of the defaming statement had
spread beyond DCNA.
Finally, the defendants maintain that $2 million in
compensatory damages is excessive in light of the decisions in
Republic Tobacco Co. v. North Atlantic Trading Co.,

381 F.3d 717

,
734 (7th Cir. 2004), and   Brown & Williamson Tobacco Corp. v.
Jacobson,

827 F.2d 1119

(7th Cir. 1987).   In Brown & Williamson,
the trial court reduced a jury verdict of $3 million in
compensatory damages to $1.   After determining that the jury
award was not based on passion or prejudice because it was lower
than that requested by the plaintiff, the court of appeals found
that $1 million was the appropriate award, explaining as follows:
"Although the jury did conscientiously fulfill its duty
in this case, we are hesitant to uphold the entire [$3
million] award.   Illinois law requires appellate courts to
examine jury awards under the doctrine of presumed damages
with great care to determine whether they are 'substantial'
or within an acceptable range.   [Citations.]   We hold that
an award of $1,000,000 in compensatory damages is
appropriate in this case.   The $1,000,000 in presumed
20
No. 1-09-1848
damages is sizable but on the facts of this case it is not
'substantial' under Illinois law.    We grant that it is
difficult to draw a distinction ***."     Brown &

Williamson, 827 F.2d at 1142

.
Observing that television was a powerful medium, the court noted
that the defamatory material was broadcast four times by a
respected journalist and in a television market of approximately
2.5 million people.    The court concluded as follows:
"We recognize that this is a very inexact and somewhat
arbitrary process.   Nonetheless, the process is inherent in
the doctrine of presumed damages.    An appellate court must,
under Illinois law, use its judgment in determining the
extent to which a jury award of presumed damages will be
upheld.    Our judgment is $1,000,000."   Brown &

Williamson, 827 F.2d at 1142

.
In Republic Tobacco Co., the court reduced a compensatory
award of $3.36 million to $1 million.    The court held that "in a
case lacking proof of economic injury and where the defamatory
statements were publicized to a limited audience, it would be
inappropriate to award presumed damages that are exponentially
greater than have been awarded in past cases.    The court
continued as follows:
"While we are mindful that under the doctrine of presumed
damages a party is not required to show specific loss, there
must be some meaningful limit on the magnitude of a jury
21
No. 1-09-1848
award when it is arrived at by pure speculation.     Presumed
damages serve a compensatory function - when such an award
is given in a substantial amount to a party who has not
demonstrated evidence of concrete loss, it becomes
questionable whether the award is serving a different
purpose."   Republic Tobacco

Co., 831 F.3d at 734

.
Unlike the above cases, the plaintiff did not rely solely on
the presumption of damages but also presented proof of damages.
That evidence was largely uncontradicted.     We conclude that the
trial court's denial of a remittitur of the compensatory damages
was not an abuse of discretion.
IV. Punitive Damages
Notwithstanding the trial court's reduction of the punitive
damages from $10 million to $6 million, the defendants contend
that the punitive damages award is still excessive under Illinois
common law and violates due process.   As the Illinois punitive
damages inquiry is distinct from the constitutional challenge
(Blount v. Stroud,

395 Ill. App. 3d 8

, 22,

915 N.E.2d 925

(2009)), they will be addressed separately.
A. Illinois Common Law
1. Standard of Review
As stated above, this court reviews a ruling on a motion for
a remittitur for an abuse of discretion.

Diaz, 397 Ill. App. 3d at 45

.   The underlying question is whether the trial court was
correct in ordering the remittitur.    Slovinski v. Elliott, 237
22
No. 1-09-1848
Ill. 2d 51, 61,

927 N.E.2d 1221

(2010).
Juries are charged with the determination of the amount of
punitive damages because the amount depends so closely upon the
fact-finding by the jury.