By Daniel R. Street
By now, everyone in the entire world heard about a New York federal jury’s award of $83 million dollars to E. Jean Carroll against Donald J. Trump for what she claims was defamation arising from her claim of a sexual assault in a Bergdorf’s dressing room. The verdict itself consists of $18.3 million dollars in compensatory damages and $65 million in punitive damages. What virtually no one reports is these damage awards are grossly excessive. The overwhelming likelihood is Donald Trump won’t have to pay anywhere near this amount of money, even if his efforts to reverse the verdict altogether fail. Let’s take a closer look at the reasons why.
Some background is in order for readers to understand the case and its complicated procedural posture.
E. Jean Carroll is a journalist who wrote an advice column for Elle magazine for over two decades. In 2019, she published a book in which she claimed Donald J. Trump, who was then President of the United States, raped her in a dressing room at Bergdorf Goodman department store in Manhattan in 1994, 1995, or 1996. (I cannot be more specific about the date, since Ms. Carroll herself does not even recall the year it supposedly happened.) When she went public with the accusations in 2019, some 25 later, President Trump vociferously denied her claims.
In response to President Trump’s vigorous denials of her claims, Carroll filed suit in New York State Court in 2019 seeking damages for defamation. The USA removed the case to federal court under a federal law (commonly known as the Westfall Act) calling for the USA to be substituted as a defendant in the place of President Trump. Carroll could not sue over the sexual assault claims in 2019, because any such claims were lost due to the passage of time because of the statute of limitations.
While the 2019 defamation suit was pending, the State of New York passed the Adult Survivor’s Act and revived Carroll’s sexual assault claims. This allowed Carroll to file suit against Donald J. Trump over the alleged rape itself. She sued in federal court in New York on November 24, 2022. Included with the rape allegations were additional defamation claims, again pertaining to Trump’s denials, this time in 2022.
In an unusual twist, the suit filed in 2022 (involving the actual sexual assault claim and some defamation claims) went to trial before the suit filed in 2019 (again, the 2019 suit only involved defamation claims). In May 2023, a jury in New York awarded Carroll $5 million dollars in combined damages against Trump on the 2022 suit. The jury found against Carroll on the “rape” claim, but found in her favor on the other claims. That case is on appeal.
In January 2024, the 2019 defamation claim went to trial. This time the jury found Donald Trump’s forceful denials of Carroll’s claims were defamatory and awarded $18.3 million in compensatory damages and $65 million in punitive damages. What the media is not telling you is Carroll will not collect $83.3 million, because the compensatory damage award is grossly excessive and the punitive damage award violates the Due Process Clause of the 14th Amendment. Her damages will be reduced, even if the case is not reversed altogether.
The Excessive Compensatory Damages. Compensatory damages are the actual loss or damage a party suffered. Recall, the award for what Carroll claims (and the jury found) were defamatory statements made by Trump in 2019 totaled $18.3 million in compensatory damages. This award was made on New York State Law defamation claims. The United States Supreme Court ruled in a case called Gasperini v. Center for Humanities, Inc., that state law governs the review of the amount of a jury verdict in a diversity case like this one.
Under New York State law, a money judgment is excessive “…if it deviates materially from what would be reasonable compensation.” This standard requires the court to review the evidence presented at trial in support of the award and compare the award to other similar New York cases.
A review of New York case law on defamation reveals no comparable awards to this one, in fact it is not even close. New York law simply does not support compensatory damages of more than $3 or $4 million, nowhere near the $18,300,000 awarded to Carroll by the jury. There are no $18.3 million compensatory damage awards by New York State courts. Once the award is found to be excessive it must be lowered to the maximum amount which can be recovered. This is known as the maximum recovery rule. At the very least, Carroll’s compensatory damages should be reduced from $18.3 million to $3 or $4 million. (There is also the issue of duplicative damage awards, since similar awards were made by both juries, including for “repairing” Carroll’s reputation and defamation).
The Excessive Punitive Damages. While compensatory damages are awarded to compensate someone for actual losses, punitive damages may be awarded in some instances as a punishment. Again, the jury in the Carroll case awarded $65,000,000 in punitive damages on Carroll’s 2019 claims. This award is grossly excessive under the Due Process Clause of the 14th Amendment to the United States Constitution.
In BMW of North America, Inc. v. Gore, the United States Supreme Court ruled an excessive punitive damage award under State law violates the 14th Amendment Due Process rights of the party cast in judgment. The Court noted the primary concern is the ratio of the compensatory damages to the punitive damages. In another case the Supreme Court observed when compensatory damages are “substantial” a punitive damage award equal to the compensatory damage award would usually be the most allowed. Federal cases confirm compensatory damage awards in the $300,000 to $1,000,000 range (far less than the award to Carroll) were “substantial” for these purposes. See here, here and here.
The punitive damage award in Carroll of $65,000,000 is 3.55 times the outrageously high $18.3 million-dollar compensatory damages award. This punitive damage award is clearly unconstitutionally excessive and should be reduced to a 1 to 1 ratio.
What should happen as the case moves forward is the compensatory damage award of $18.3 million dollars should be reduced to $3 or $4 million, then the punitive damage award should be limited to a ratio of 1 to 1 to the compensatory damages. If that happens, the total award would be in the $7 to $8 million dollar range ($3 or $4 million in compensatory damages and $3 or $4 million in punitive damages).
