United States Court of Appeals
For the First Circuit
No. 03-1242
JAMES R. FIORI,
Plaintiff, Appellee,
v.
TRUCK DRIVERS, LOCAL 170,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Chief Judge,
Siler,* Senior Circuit Judge,
and Lynch, Circuit Judge.
Timothy P. Wickstrom with whom Tashjian, Simsarian & Wickstrom
was on brief for appellant.
Charles J. Brucato, Jr. with whom Consigli and Brucato, P.C.
was on brief for appellee.
January 7, 2004
*
Of the Sixth Circuit, sitting by designation.
BOUDIN, Chief Judge. James R. Fiori won a jury verdict
against Truck Drivers Local 170 ("Local 170" or "the union"), a
Massachusetts branch of the International Brotherhood of Teamsters
("Teamsters"). Fiori was awarded damages on two different claims
but only the libel award, in the amount of $150,000 (as reduced by
the judge) is challenged by the union on this appeal. The
background events are largely undisputed.
On May 2, 1991, while working for Tresca Brothers Sand
and Gravel ("Tresca"), Fiori injured his back while shoveling
gravel and began receiving workers' compensation of $428/week. A
few days later, Local 170 began a strike against Tresca that would
last three years. Fiori--a union member since 1982--participated
in the strike by walking the picket lines three days a week for all
three years.
Local 170 paid weekly strike benefits to union workers
participating in a strike, ranging from $45/week at the beginning
of the strike to $200/week by the end. Fiori asked Ernie Tusino,
Local 170's Secretary-Treasurer--the principal officer of Local 170,
who had authority to speak for the union--whether he was allowed to
receive these strike benefits in addition to workers' compensation.
Tusino said he could. During the three-year strike, Fiori collected
a total of $26,345 in strike benefits and more than $58,636 in
workers' compensation payments.
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The strike ended in 1994, and Fiori returned to work as
a truck driver for other companies. In 1995 Fiori ran for vice-
president of Local 170, and won. Soon after Fiori took office a
power struggle began within both Local 170 and its parent Teamsters
union. Both Fiori and Ernie Tusino supported James R. Hoffa, the
son of former Teamsters president Jimmy Hoffa, in the Teamsters'
1996 presidential election. The other officers of Local 170
supported the incumbent, Ron Carey.
In spring 1996--in the midst of the national campaign--
Teamsters president Carey removed Tusino from his position in Local
170, and replaced him with Richard Foley. Foley and other Local 170
officers began an investigation into Fiori's "double-dipping"
(receiving both workers' compensation and strike benefits at the
same time) during the Tresca strike several years before. Foley
exchanged letters with Teamsters officials, who opined that double-
dipping violated union rules.
In February 1997, Foley filed internal union charges
against Fiori, and in March 1997, Local 170's executive board found
Fiori guilty of double-dipping and removed him as vice president.
Fiori was ordered to repay the strike benefits; he refused and was
suspended from union membership on July 21, 1997. In the same month
Foley sent all the union members a letter ("the Foley letter"),
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written on official Local 170 stationary, that underlies this
appeal.1
In substance, the Foley letter informed all union members
that Fiori had improperly collected strike benefits and workers'
compensation at the same time. The letter is factual in tone; it
claims to present nothing but "the undisputed facts"; it states that
Fiori had improperly received $26,345; and it emphasizes that this
purloined sum was "your dues money." (emphasis in original). This
letter was sent in July 1997, four months before the Local 170
election in which Fiori ran for (and lost) the position of business
agent.
Fiori filed unsuccessful protests within the union
challenging the Executive Board action, and then a complaint with
the National Labor Relations Board. The NLRB heard evidence and
concluded that Local 170's charges against Fiori were politically
motivated retaliation: the charges were not brought until three
years after Fiori stopped receiving benefits and began soon after
he openly supported an opposition candidate. Local 170 was found
to have committed an unfair labor practice, and the union was
ordered to revoke its demand for repayment of strike benefits.
1
At trial Fiori also introduced an unsigned, pro-Carey
campaign flier that was circulated among union members sometime in
1996. That flier strongly criticized Fiori for receiving over
$100,000 during the three-year strike period. The Foley letter is
the focus of both sides' argument on appeal, however.
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The NLRB decision did not issue until August 1998. In the
meantime, the Local 170 elections had been held and Fiori had been
defeated by eight votes for the position of business agent. Fiori
filed the present action against Local 170 in federal district
court. Only two claims survived the union's motions to dismiss and
for summary judgment: Fiori's claims that he had been libeled under
Massachusetts law and that his removal from office constituted
retaliation in violation of the Labor-Management Reporting and
Disclosure Act, 29 U.S.C. § 411(a)(5) (2000). See generally Linn
v. United Plant Guard Workers, Local 114, 383 U.S. 53 (1966).
The jury found for Fiori on both counts. It awarded him
$300,000 in compensatory damages on his libel claim and $234,500 in
compensatory and punitive damages on his retaliation claim. On
post-trial motions, the district judge reduced both awards through
remittitur; the libel award was reduced to $150,000 because the
judge concluded that the jury had not properly taken into account
Fiori's duty to mitigate damages.
Local 170 now appeals, limiting itself to several
different attacks on the libel award, all of which concede that the
Foley letter was libelous. Local 170 first argues that there was
insufficient evidence that the libel harmed Fiori in any way, so the
claim should never have gone to the jury. There would be enough
evidence for an award based on mental suffering even if Fiori's loss
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of the election for business agent were disregarded; but, as we will
see, the real issue turns out to be the election.
Under Massachusetts law, allowable defamation damages
include "special damages"--proximately caused economic losses--and
also (in the case of libel) any non-economic "harm to reputation and
mental suffering." Shafir v. Steele, 727 N.E.2d 1140, 1146 (Mass.
2000); Ravnikar v. Bogojavlensky, 782 N.E.2d 508, 511 (Mass. 2003).
The emotional distress need be no more than "outrage" and "anger"
upon seeing the libelous statements, Shafir, 727 N.E.2d at 1146,
since mental distress is the "natural result" of libel, id. (citing
Markham v. Russell, 94 Mass. 573, 575 (Mass. 1866)).
Fiori testified that he felt "humiliated" when he saw the
Foley letter, said that he had to deal with "a lot of accusations"
from other union members, and explained that "there's not enough
hours in the day to explain to the people that don't know you that
it's inaccurate, it's not true, and that I didn't do anything
wrong." He testified about his embarrassment and how he "didn't
sleep good" after the accusations.
This mental distress is sufficient to allow the libel
claim to go to the jury. See Shafir, 727 N.E.2d at 1146. The fact
that Fiori admitted he had no physical symptoms besides minor sleep
loss, sought no medical attention and took no medicine might limit
the award that could reasonably be allowed for mental suffering.
However, in this case mental suffering may be beside the point; as
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the district judge concluded in his post-trial decision granting
remittitur, the award was pretty clearly premised on an award of
economic damages.
Tusino had testified (over objection) that the business
agent job paid about $100,000. Proof of mental anguish was modest.
Local 170 argues on appeal, "[t]he only explanation for the jury
award of $300,000 on the libel claim is that the jury drew an
impermissible inference that the plaintiff lost an election for a
three-year term as Business Agent, at $100,000 per year." We will
assume arguendo that this inference was drawn by the jury; whether
it was permissible is the next question.
The union presents its claim of error under two heads:
first, that the evidence did not permit a rational jury to conclude
that the libel caused Fiori's election loss, and second, that the
judge should have granted the union's request for an instruction
forbidding the jury to consider the election loss as a basis for
economic damages. The issue can largely, although not entirely, be
dealt with under the first heading, that is, as a claim of jury
error.
Ordinarily, a jury verdict on an issue of causation in
fact--here, whether the libel likely caused the election loss--is
reviewed with great deference, the court asking whether any rational
jury could so find. See Wortley v. Camplin, 333 F.3d 284, 295 (1st
Cir. 2003). But out of concern that libel judgments constrain free
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speech, both federal and Massachusetts courts tend to be somewhat
more searching in their review of defamation awards.2 We begin by
considering the basis for the jury's verdict and then return to the
First Amendment concerns.
The issue is certainly close. The union's argument is
terse; its brief relies primarily on one decision, Kirk v. Transport
Workers Union, AFL-CIO, 934 F. Supp. 775, 790-92 (S.D. Tex. 1995),
and one central point: the union claims that Fiori "failed to offer
any evidence of the election, who voted, the number of votes, the
voter's motives, the possibility of changing votes, etc." Thus,
says the union, the record is "void" of evidence of harm. We begin
with the evidence and then address precedent.
What the jury learned was that several months before Fiori
ran for business agent, Foley had sent all 3,500 union members a
letter on official stationary informing them that Fiori had
improperly collected strike benefits and workers' compensation,
depleting the members' dues money by over $25,000. The union does
not now deny that this was libel, and one would expect it to be
quite damaging in a union election. Here, the jury was also told
by Fiori that he had to do a lot of explaining after the libel and
that he had lost by only eight votes.
2
Bose Corp. v. Consumers Union of United States, Inc., 466
U.S. 485, 508 (1984); Veilleux v. Nat'l Broadcasting Co., 206 F.3d
92, 106 (1st Cir. 2000); Tosti v. Ayik, 476 N.E.2d 928, 938 (Mass.
1985); Stone v. Essex County Newspapers, Inc., 330 N.E.2d 161, 169-
70 (Mass. 1975).
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Certainly there is an absence of other evidence concerning
the election, which could conceivably have helped either side (and
we will return to a probable explanation for this absence). But
Fiori needed only to offer enough evidence to permit a rational jury
to conclude that, more likely than not, the libel cost him the
election. Without anything more, it seems to us reasonable, and no
stretch at all, for a jury using its common sense to conclude that
the libel likely changed a number of union votes. Could it also
conclude that this cost Fiori the election?
Well, if hundreds of members voted in the election, we
think that a rational jury could conclude that the Foley letter
probably changed enough votes to cost Fiori the election. This is
so even though some of the union members probably knew of the charge
against Fiori and the Executive Board decision from other sources.
After all, the letter went to everyone in the union, the criticism
of Fiori was harsh (and according to the jury libelous) and--if we
supposed that only half the union members voted--eight votes would
represent less than one half of one percent of the vote. The story
would be quite different if the union had only sixteen members.
The gap that remains is that there was apparently no
evidence as to the number of members who actually voted in the
election. But it is no great leap for a jury to suppose that if the
union membership is 3,500, there were almost surely hundreds of
votes in an election for a business manager position whose salary
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alone suggests that the function was important. This kind of
background assumption about how the world works is part of the
jury's tool box. United States v. Guerrero-Guerrero, 776 F.2d 1071,
1075 (1st Cir. 1985), cert. denied sub nom Mosquera v. United
States, 475 U.S. 1029 (1986).
The line between permissible inference drawing and undue
speculation cannot be reduced to a single formula. United States
v. Kirvan, 997 F.2d 963, 966 & n.2 (1st Cir. 1993). Here, based on
the standards ordinarily applied to jury verdicts, we think that as
a matter of probabilities the jury was not irrational. The only
real question is one of policy: whether some higher level of
certainty as to compensatory damages should be required because of
First Amendment concerns, or whether de novo review should supplant
deferential review of the jury's assessment of actual damages.
Yet libel claims are already constrained by demanding
fault requirements, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323,
347 (1974), and de novo review of constitutional issues such as
malice and falsity, e.g., Veilleux v. Nat'l Broadcasting Co., 206
F.3d 92, 108 (1st Cir. 2000). On the union's own premise that the
award was based on the election loss, we are not concerned here with
an amount of damages that is provocatively imaginative and might be
a cloaked award of punitive damages--another matter where special
scrutiny might well be warranted. The award, adjusted by the
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remittitur, is the amount of real economic damages Fiori suffered
if the libel caused his loss in the election.
Federal cases raising the evidentiary bar in the free
speech context stress that the bar is raised only for issues
implicating the First Amendment. In Veilleux, we said "the
reviewing court does not extend the independent review standard to
all determinations concerning a particular legal claim, but only to
those that specifically involve the application of First Amendment
law to specific facts." 206 F.3d at 107. Whether a libel was the
but-for cause of subsequent economic loss does not directly
implicate the First Amendment, as long as it is clear that the
finding was not a hidden award of punitive damages. So we decline
to hold that the evidence of damages was inadequate in this case.
The defendants cite Kirk, 934 F. Supp. at 790-92, as
reaching the opposite conclusion. In Kirk, the district court was
ruling pretrial on an assembly of claims growing out of an intra-
union dispute, and among these many claims was one for libel based
upon statements made in a union newsletter. The district court
declined to dismiss the libel claim short of trial, but went on to
dispose summarily of a claim that the defendants had through various
means violated their federal labor law duty of fair representation.
As to this claim, the court said that the duty was directed to
conduct that implicated management-worker relations and did not
apply to intra-union disputes.
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To avoid this outcome, the plaintiffs had argued that
relations with management were implicated by the defendants' libel
because, had the conduct not occurred, the plaintiffs would later
have won union elections and then taken leaves of absence from their
other jobs to serve as union officials. This argument was dismissed
by the district court as too thin a connection to implicate the duty
of fair representation. Then the court added in a single sentence:
"Moreover, it is far too speculative to suggest that, but for
publication of the [libelous] newsletter, Plaintiffs would have been
elected to executive positions within the Local Union." Kirk, 934
F. Supp. at 792.
In our case, the union's reliance on Kirk is, in the once
familiar phrase, "close but no cigar." The quoted sentence may have
been more than a throw-away line and, if so, may well have been
defensible on the facts; one cannot tell because the facts
concerning the possible causal connection are not discussed in the
opinion. Regardless, the district court did not say that there
could never be a firm connection between a libel and the loss of an
election, nor could any such generalization be defended.
The adequacy of the evidence of a connection in our own
case disposes of the claim that the jury should have been instructed
not to consider the election, insofar as that claim rests on an
insufficiency of the evidence argument. How far judges are required
to instruct separately on the inadequacy of evidence as to separate
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components of a damage claim is a complicated matter well left for
another day. Cf. Interstate Litho Corp. v. Brown, 255 F.3d 19, 29
& n.11 (1st Cir. 2001), cert. denied 534 U.S. 1066 (2001).
So we come at last to the most curious issue in the case.
The union points out that the trial judge said to counsel, prior to
closing arguments, that "the matter of the election is not going to
the jury." The union argues that whether or not the judge had to
so hold, this ruling was the "law of the case" and prejudiced the
union because in reliance on this statement defense counsel failed
to address the election issue in closing argument. This, says the
union, "at least" requires a new trial on damages.
Some further background is required. Early on in the
case, the union filed a motion in limine asking the court to exclude
all testimony relating to the election. The trial judge sensibly
denied the motion, ruling that he would consider each piece of
evidence as it was proffered. Not much evidence was presented
concerning the election; conceivably Fiori's counsel worried that
such damages were too speculative or he may have been trying to
skirt the issue, hoping that the jury would make the connection on
its own.
In any event, the judge said in mid-trial, after Fiori's
testimony but before Tusino's testimony, that he had not seen
evidence that put the election in issue, but "I have not told the
plaintiff that under no circumstances can he attempt to offer [such]
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evidence . . . ." The judge later allowed Tusino to testify, over
the union's objection, that the salary of a business agent was
approximately $100,000 a year. On appeal the union is not pursuing
its evidentiary objection nor claiming that the salary of a business
agent should not have been admitted.
After both sides presented evidence, Fiori sought an
instruction that the jury could consider his loss of the business
agent position; Local 170 sought an instruction that it could not.
The judge declined to give either instruction, commenting--words now
stressed by the union as prejudicing its position--that "the matter
of the election is not going to the jury." Neither side mentioned
election damages in their closing argument.
It is not clear what the district judge meant in his
quoted comment; he did not refer to it in his post-trial ruling on
damages. It might at first look as if at the time he was siding
with the union and ruling that there was inadequate evidence on the
election issue; but, of course, the judge also flatly refused to
give an instruction barring jury consideration of the issue. Local
170 did not ask the judge to clarify his comment before closing
arguments, nor did it ask for or receive a ruling that Fiori could
not argue for damages based on the election in closing--a policing
device that judges sometimes use in lieu of an instruction. See
Richardson v. Bowersox, 188 F.3d 973, 980 (8th Cir. 1999); see also
Herring v. New York, 422 U.S. 853, 862 (1975).
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Under these circumstances, we agree that the defense may
have been misled, but see no basis for reversal. A stray comment,
and one necessarily cryptic in context (the court having refused to
give the union's instruction) is not "law of the case"--a doctrine
directed primarily to formal legal rulings. See, e.g., United
States v. Vigneau, 337 F.3d 62, 67-68 (1st Cir. 2003). Nor, as it
happens, would law of the case doctrine prevent the judge from
altering his ruling--this happens from time to time--although it
would likely require him to take account of justified reliance. Cf.
Conley v. United States, 323 F.3d 7, 13 (1st Cir. 2003).
Still, if the judge had unfairly misled defense counsel
as to the permitted scope of his closing argument, we could undo the
mischief without regard to law of the case doctrine. But here,
after the district court refused the union's request for an
instruction, the union's counsel never sought a ruling on whether
counsel could argue about the election issue. This failure to press
the point may well have been tactically justified, for if the union
sought such a ruling and the court ruled that it could argue the
issue, Fiori's counsel would likely have argued it himself.
By not pressing for a ruling on what was open for
argument, the union may have gambled (successfully) that Fiori's
counsel would follow suit, focusing upon mental distress damages and
never mentioning the lost business agent salary. This certainly
reduced the chances that the jury would award economic damages on
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its own; and if it did award them, the union still had its
inadequate-evidence argument for appeal. In any event, the union
took its chances in failing to ask for a yes-or-no ruling as to what
was open for argument to the jury.
Affirmed.
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