Surely the most salacious legal development of 2016 (so far) is Hulk Hogan’s $140 million verdict in March from a Florida court against the online media company and blog network Gawker Media LLC for publishing a video of him having sex with the wife of his then friend, a radio personality by the name of “Bubba the Love Sponge Clem.” Gawker’s conduct must have angered the jury. It didn’t help when a former Gawker editor acknowledged at trial that he had said at his deposition that there would be a public interest in promoting child pornography of the children of celebrities if they were over the age of four, but claimed that he was just being sarcastic. The case took on renewed interest with the disclosure in late May that billionaire tech investor Peter Thiel provided $10 million in litigation funding for Hulk (real name Terry G. Bollea) to get revenge against Gawker for outing him as gay several years ago.
The prurient aspect of the case of course sells newspapers and drives clicks, but the case also raises the issue whether the First Amendment interest in Gawker’s publication of a video about a public figure outweighed Hulk’s interest in privacy. We leave that issue for others to discuss and for the appeal. Our interest in is the nuts and bolts of how the plaintiff’s legal team got the jury to award $140 million verdict in a single plaintiff case not involving death or serious bodily injury.
The case was originally filed in October 2012 and took over three and a half years to get to a trial. The trial lasted two weeks. The cause of action was not defamation. It was intentional infliction of emotional distress and invasion of privacy. The jury awarded $55 million in economic damages based on expert testimony that Gawker had been enriched by all of the site traffic drawn by the video, $60 million in emotional distress damages based on the testimony of Hulk and one other fact witness about the emotional distress Hulk felt, and $25 million in punitive damages in a second deliberation. The collectability of the verdict is unknown, although media reports have suggested that the case and other pending defamation cases against Gawker threaten its existence. Gawker has already begun the appeal.
The takeaway for those who follow litigation as a matter of business is that in today’s litigation climate, large jury verdicts can be expected—even without death or bodily harm—where harm to economic, reputational, or emotional interests arise out of proven misconduct. Punitive damages are not necessarily the key to a large recovery; economic damages can result in large verdicts and emotional distress damages in particular can be significant because they are unlikely to be disturbed by the trial court or on appeal. We don’t hear about these cases all that often because they settle or because plaintiffs cannot afford or find litigation counsel ready to bring the case to trial. Whether or not the Gawker Media verdict stands on appeal, the message to defendants who inflict economic and emotional harm on others is clear: beware the consequences when the case finally gets to the jury.