In a defamation per se case, the jury will be instructed that it may presume damages and award a monetary recovery to the plaintiff even in the absence of any evidence of specific harm caused by the defamatory statements. This goes against the general rule that juries cannot award damages unsupported by the evidence. What’s not entirely clear, however, is how much the jury is permitted to award in such a case. Most courts seem to be of the mind that whatever the jury decides is appropriate to award will be permissible in cases of defamation per se. But suppose that number is vastly out of proportion to the gravity of the offense? If the defendant falsely accused the plaintiff of stealing a pack of gum, can a jury decide to award $500 million to the plaintiff, even in the absence of any evidence of harm to reputation? Well, yes and no. In defamation per se cases, the jury can award whatever amount it decides is warranted–even if there is no evidence at all of actual damages–but if the award is especially unconscionable, the court can strike it down.
Virginia Model Jury Instruction 37.105 (which applies in defamation cases involving presumed damages) simply says “the plaintiff is entitled to recover compensatory damages without any proof of actual or pecuniary injury.” There is no mention of any limits on the amount the jury might award. So as far as the jury is concerned, the sky’s the limit. In Poulston v. Rock, 251 Va. 254, 261 (1996), the court wrote that “even in the absence of any evidence of pecuniary loss, the damages which the injured party is entitled to recover may be substantial.”
And Virginia has seen some large awards in defamation per se cases. In Government Micro Strategies, Inc. v. Jackson, 271 Va. 29 (2006), the jury awarded plaintiff in a per se defamation case $5 million in compensatory damages, which award was upheld on appeal. The statement at issue alleged a corporate CEO had “mismanaged” the company. In WJLA-TV v. Levin, 264 Va. 140 (2002), the Virginia Supreme Court upheld an award of $2 million in presumed compensatory damages. The defamation in that case was in the form of a news story implying that a doctor had sexually assaulted his patients.
Normally, a trial court has discretion to set aside a verdict that is “plainly wrong or without credible evidence to support it.” (See Jenkins v. Pyles, 269 Va. 383, 388 (2005)). That’s not a very helpful proposition in a defamation per se case, because by definition, damages are presumed such matters, even in the absence of credible evidence. So how do courts deal with sky-high verdicts in cases of defamation per se?
The law in Virginia is that while the jury in a defamation per se case will be instructed to presume damages and that it can award whatever amount it deems appropriate, its power is not unlimited; some degree of proportionality is still required. Even in a per se case, “humiliation, and embarrassment, although not a factor ‘in evidence,’ is relevant and must be considered in any determination of damages based on defamation per se.” (See Poulston v. Rock, 251 Va. 254, 261 (1996)). If it appears from the sheer amount of the verdict that the jury was influenced by passion, corruption, or prejudice, or misunderstood the facts or law, of if the amount is so high that it “shocks the conscience” of the court, the verdict may be reduced or set aside. (See WJLA-TV v. Levin, 264 Va. 140, 162–63 (2002)). A trial court may also set aside a verdict if is so disproportionate to the injuries suffered as to suggest that it is “not the product of a fair and impartial decision.” (See Edmiston v. Kupsenel, 205 Va. 198, 202 (1964)). Absent any of these scenarios, however, the jury can award just about whatever amount it decides is appropriate–even if that number is followed by six zeros.
I should mention that this blog post is just a quick summary of the law in a very complex legal area. Use it as a starting point to your research, not as a definitive answer. Also, note that some scholars have argued that excessive presumed-damages awards violate the First Amendment, the due process clause of the Fourteenth Amendment, and/or public policy, particularly when applied in cases brought by public figures. To the best of my knowledge, the Virginia Supreme Court has not yet been faced with any of these arguments, and may or may not be receptive to them.