Law professors David Rudovsky of the University of Pennsylvania and Leonard Sosnov of Widener University have won an extraordinary verdict: $5.2 million in compensatory and punitive damages for defamation by West Publishing. At issue was a shoddy 2008 pocket part issued under their names. Rudovsky (left) called the update a “poorly researched ‘sham’ pocket part.”
The verdict came after a four-day trial and the company is expected to appeal.
The professors had demanded more compensation from the company, which responded ultimately by issuing the update to their Criminal Procedure treatise under their names. In a declaration, Rudovsky explained:
In 2008, West and the Authors could not agree on business terms for the Authorsto prepare a 2008-2009 pocket part.13.In December, 2008, West published a 2008-2009 pocket part, with a title page that prominently stated that the publication was “by” David Rudovsky and Leonard Sosnov, and in smaller print, by the “The Publisher’s Staff.”
This pocket part was virtually unchanged from the 2007 pocket part as it contained almost no new cases or rule changes of any significance. Moreover, the pocket part failed to note or discuss several decisions from the Pennsylvania Supreme Court that reversed,remanded, or granted review of decisions by the Pennsylvania Superior Court. See, e.g.,Commonwealth v. Mallory, 941 A.2d 686 (Pa. 2007); Commonwealth v. Brown, 925 A.2d 147(Pa. 2007); Commonwealth v. West, 938 A.2d 1034 (Pa. 2007); Commonwealth v. Bennett, 930A.2d 1264 (Pa. 2007); Commonwealth v. Lee, 935 A.2d 865 (2007); Commonwealth v. Gravely,918 A.2d 761 (Pa. Super. 2007), allowance of appeal granted, April 2, 2008. In addition,changes to the Rules of Appellate Procedure (e.g., Rule 2111) and additions and amendments to the Rules of Juvenile Court Proceedings (e.g., new Rules 140, 630 and 632, and amendments to Rules 120, 123, 124, 150, 360, 364, 631 and 800), were not addressed in the pocket part.15.The Authors retained counsel to seek relief from the damages and harm caused
The professors had wanted to completely rewrite the treatise — a third edition — but West refused and offered only to have them do a pocket part — offering only $2,500 in compensation.
At trial, West’s lawyer, James F. Rittinger told the jury that the Pennsylvania criminal procedure treatise was a money loser and only made about $17,000. Moreover, he argued that their contract explicitly says that West has the right to publish an update without changing the names of the original authors.
One thing that I find interesting is the ration between compensatory and punitive damages. While once treated as the domain of state law and federalism, the Supreme Court has handed down a series of decisions striking down punitive damage awards based on the due process clause. In a case with similarly great ratio in Gore v. BMW, for example, the Supreme Court struck down an award to Dr. Ira Gore after he found that his new BMW had been repainted at that dealership without informing him. An Alabama jury awarded $4,000 in compensatory damages and $4 million in punitive damages. The amount was later reduced to $2 million by the Alabama Supreme Court but then struck down by the Supreme Court.
One would expect a similar use of remittitur by the trial judge in this case, but it could still run afoul of rulings like Gore. In State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), the Court generally imposed a ten-to-one ratio as a limit under the due process clause. In both Gore and State Farm, the Court instructed courts to consider factors like (1) the degree of reprehensibility of the defendant’s misconduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.
Under these cases, the size of the judgment in Rudovsky could be in jeopardy. The professors were awarded $90,000 each and $2.5 million in punitive damages. Applying a strict ratio analysis, the maximum on punitive damages would be less than a million for each professor — even if the court accepts the $90,000 compensatory baseline figure. The current award is over an overall 20-1 ratio. Even at a total of $2 million, however, it would be a major new precedent in the field and the company is likely to appeal on contractual grounds. Indeed, this could end up in a Torts Treatise or West pocket part.
Regardless of such appeals, these two professors should be given credit for finally finding a way to become millionaires from a state law treatise. That alone will make them living Gods among legal academics.