# Carroll v. Trump

> District Court, S.D. New York · April 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10660362

## Case

- **Court:** District Court, S.D. New York
- **Decided:** April 25, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
E. JEAN CARROLL,
Plaintiff,
-against- 20-cv-7311 (LAK)

DONALD J. TRUMP, in his personal capacity,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
MEMORANDUM OPINION

Appearances:

Roberta Kaplan
Shawn Crowley
Joshua Matz
Trevor W. Morrison
Matthew Craig
KAPLAN HECKER & FINK LLP
Attorneys for Plaintiff
D. John Sauer
William O. Scharf
JAMES OTIS LAW GROUP LLC
Alina Habba
Michael T. Madaio
HABBA MADAIO & ASSOCIATES LLP
Attorneys for Defendant
2
LEWIS A. KAPLAN, District Judge.
The jury in a closely related case tried previously found that Donald Trump forcibly
sexually abused plaintiff E. Jean Carroll in the mid-1990s and maliciously defamed her in an October

2022 statement. In this case, another jury awarded Ms. Carroll $17.3 million in compensatory and
$65 million in punitive damages against Mr. Trump for defaming her in two other statements that
Mr. Trump issued from the White House on June 21 and 22, 2019.1 Mr. Trump now moves for a
new trial or, alternatively, for judgment as a matter of law dismissing this case.

New Trial
Mr. Trump’s new trial motion argues that (1) the Court erred in excluding evidence

and in instructing the jury on common law malice; (2) the $7.3 million and $11 million
compensatory damages awards each were excessive and must be remitted; and (3) the $65 million
punitive damages award was excessive and must be remitted. The motion is without merit for the
numerous and compelling reasons articulated by Ms. Carroll in her opposition.2 The Court writes,
however, to emphasize four points that perhaps might have been articulated more thoroughly in the
briefing.

1
The procedural background of the two cases and the reasons that they were tried in the order
in which they were tried have been laid out in earlier decisions, familiarity with which is
assumed. See, e.g., Carroll v. Trump, No. 20-CV-7311 (LAK), 2023 WL 5312894
(S.D.N.Y. Aug. 18, 2023) (“Carroll I”); Carroll v. Trump, No. 22-CV-10016 (LAK), 2023
WL 2669790 (S.D.N.Y. Mar. 28, 2023) (“Carroll II”).
2
See Dkt 330 (Pl. Mem.).
3
A. The Charge on Punitive Damages
Mr. Trump contends that the Court erred by failing to instruct the jury that it could
award punitive damages only if it found that Mr. Trump was motivated solely by a desire to injure

Ms. Carroll — that is, only if it found that Mr. Trump was motivated solely by common law malice
and nothing else.3 The Court rejects that argument essentially for the reasons stated by Ms. Carroll
in her opposition, although it takes this opportunity to develop the point in greater depth.
New York Times Co. v. Sullivan and its progeny limited on First Amendment grounds
the reach of liability in some categories of defamation cases.4 Among other things, it required, as
prerequisite to liability in some cases, proof of what it referred to as “actual malice.” It held that a
defamatory statement is made with “actual malice” when it is made “with knowledge that it was
false or with reckless disregard of whether it was false or not.”5 In other words, “actual” or

“constitutional malice” concerns the defendant’s state of mind with respect to truth or falsity.
New York — the law of which governs in this case — long has employed a different
concept known as common law malice. Common law malice exists when a tortfeasor breaches a
legal duty to a plaintiff “with deliberate intent to injure or . . . out of hatred, ill will, or spite or . . .

3
Dkt 312 (Def. Mem.) at 2-5.
4
376 U.S. 254 (1964).
5
Id. at 280.
The U.S. Supreme Court later held that reckless disregard is satisfied only by proof that the
statement was made with “a “high degree of awareness” of the statement’s probable falsity
or that the defendant “in fact” entertained “serious doubts” as to its truth. Garrison v.
Louisiana, 379 U.S. 64, 74 (1964); St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
4
with wilful, wanton or reckless disregard of another’s rights.”6 Thus, “common law malice” is
concerned with a defendant’s motive vis-a-vis the plaintiff injured by the defendant’s conduct. And
proof of “common law malice” long has been both a necessary and a sufficient basis for the recovery

of punitive damages in New York tort cases, whether in actions for defamation or for other torts.
But it has played another role in defamation cases as well.
“Courts have long recognized that the public interest is served by shielding
certain communications, though possibly defamatory, from litigation, rather than risk
stifling them altogether. When compelling public policy requires that the speaker be
immune from suit, the law affords an absolute privilege, while statements fostering
a lesser public interest are only conditionally privileged.
“One such conditional, or qualified, privilege extends to a ‘communication

made by one person to another upon a subject in which both have an interest.’ This
‘common interest’ privilege has been applied, for example, to employees of an
organization, members of a faculty tenure committee and constituent physicians of
a health insurance plan. The rationale for applying the privilege in these
circumstances is that so long as the privilege is not abused, the flow of information
between persons sharing a common interest should not be impeded.”7
The test for whether a conditional privilege in a libel case has been abused long has

been whether the defamatory statement was made in whole or in part to serve the public interest that

6
N.Y. Pattern Jury Instrs. – Civil § 3.30 (2023).
7
Liberman v. Gelstein, 80 N.Y.2d 429, 437 (1992) (internal citations omitted).
5
gives rise to the conditional privilege. Thus, the existence of common law malice does not defeat
the conditional privilege unless it is the sole motive for the defamation.8
This exposition of the relevance of common law malice remains the law of New York

today. Indeed, when the New York Court of Appeals first clarified the relationship between actual,
or constitutional, malice and common law malice in Prozeralik v. Capital Cities Communications,
Inc., it held that proof of actual or constitutional malice alone is insufficient to justify an award of
punitive damages.9 In order to recover punitive damages, it said, a libel plaintiff must prove
“common-law malice” — the “malicious, wanton, reckless, or [] willful disregard for another’s
rights” — in addition to satisfying any requirement of actual or constitutional malice.10 Significantly,
it said nothing to suggest that a seeker of punitive damages must prove that common law malice was
the sole motive for a defendant’s defamation. And since then, the New York Court of Appeals (and

the Second Circuit) repeatedly have applied the Prozeralik common law malice test for punitive
damages without ever adding a “sole motivation” requirement.11
Despite this clear and consistent history, the defendant relies on a 2003 decision by

8
E.g., Stukuls v. State of New York, 42 N.Y.2d 272, 281 (1977) (citing RESTATEMENT
(SECOND) OF TORTS §§ 603, 605 (1979)); see also Foster v. Churchill, 87 N.Y.2d 744, 752
(1996); Liberman, 80 N.Y.2d at 439.
9
82 N.Y.2d 466, 479-80 (1993).
10
Id. (internal citations and quotation marks omitted).
11
See Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 489 (2007); Dupree v. Giugliano, 20
N.Y.3d 921, 924 (2012); Purgess v. Sharrock, 33 F.3d 134, 143 (2d Cir. 1994); Celle v.
Filipino Rep. Enters. Inc., 209 F.3d 163, 184 (2d Cir. 2000); DiBella v. Hopkins, 403 F.3d
102, 122 (2d Cir. 2005).
6
a sharply divided panel of the Appellate Division’s First Department in which that court overturned
a punitive damages award in a libel case for lack of any evidence that “malice or ill will was directed
specifically at plaintiff.”12 It then went on, unnecessarily, to assert that the First Department and the

Court of Appeals previously had held “that a triable issue of common-law malice is raised only if
a reasonable jury could find that the speaker was solely motivated by a desire to injure plaintiff, and
that there must be some evidence that the animus was the one and only cause for the publication.”13
It thus erroneously carried over this “one and only cause” language from the conditional privilege
context into the punitive damages context for defamation.14
In light of this history, Morsette has no application to the present case for multiple
reasons. First, every case cited by Morsette for the proposition that common law malice must be the
sole motivation for the defamatory publication to warrant punitive damages in fact stands for the

entirely different proposition that common law malice must be the defendant’s sole motivation to
overcome an applicable qualified privilege.15 The Morsette panel, apparently inadvertently (and in
any event mistakenly) applied the law applicable to overcoming a conditional privilege defense to

12
Morsette v. “The Final Call”, 309 A.D.2d 249, 255, 764 N.Y.S.2d 416 (1st Dep’t 2003).
13
Id. (second emphasis added) (quoting Stukuls, 42 N.Y.2d at 281).
14
Id.
15
Id. (internal quotation marks omitted) (citing Present v. Avon Prods., Inc., 253 A.D.2d 183,
189, 687 N.Y.S.2d 330 (1st Dep’t 1999); Stukuls, 42 N.Y.2d at 282; Thanasoulis v. Nat’l
Ass’n for Specialty Foods Trade, Inc., 226 A.D.2d 227, 229, 640 N.Y.S.2d 562 (1st Dep’t
1996); Ackerman v. Bechhoefer, 270 A.D.2d 878, 706 N.Y.S.2d 286 (4th Dep’t 2000); Grier
v. Johnson, 232 A.D.2d 846, 848, 648 N.Y.S.2d 764 (3d Dep’t 1996); Weir v. Equifax
Servs., Inc., 210 A.D.2d 944, 945, 620 N.Y.S.2d 675 (4th Dep’t 1994)).
7
the very different question of the availability of punitive damages.
Second, even if Morsette had meant to adopt a new rule applicable to punitive
damages — i.e., that common law malice must be the sole motive for the defamatory publication in

order to find punitive damages — its comments were dicta. As a simple reading of the opinion
reflects, the Appellate Division majority already had overturned the punitive damages award because
there was no evidence that the defendant bore any common law malice toward plaintiff.16 Indeed,
the defamation in Morsette arose from the random selection and use of plaintiff’s photograph and
its alteration to illustrate a story in a magazine in a way that falsely implied that plaintiff and others
depicted had been imprisoned.17 The plaintiff was simply a random victim, not a target of spite or
ill will. Thus, the “sole motive” discussion in the majority opinion was gratuitous.
This Court is mindful that it “is bound to apply the law as interpreted by a state’s

intermediate appellate courts unless there is persuasive evidence that the state’s highest court would
reach a different conclusion.”18 Here, the persuasive evidence is that New York’s highest court
would reject defendant’s contention that the Court should have instructed the jury that it could award
punitive damages only if it found that Mr. Trump was motivated solely by a desire to injure Ms.
Carroll — that is, if it found that Mr. Trump was motivated only by common law malice and nothing
else. Indeed, the well established case law of New York’s highest court persuasively indicates that

16
Morsette, 309 A.D.2d at 255.
17
Id. at 250-21.
18
Chufen Chen v. Dunkin’ Brands, Inc., 954 F.3d 492, 499 (2d Cir. 2020) (internal citation
and quotation marks omitted).
8
it long ago did so in substance.19

B. Standard of Proof on Punitive Damages

Defendant next contends that he is entitled to a new trial because this Court
erroneously charged the jury that the plaintiff’s burden of proof with respect to punitive damages was
a preponderance of the evidence. He argues that it should have charged that the plaintiff was obliged
to prove punitive damages by clear and convincing evidence.20 He relies on cases in two of the four
Appellate Divisions of the New York Supreme Court.
Mr. Trump’s argument is incorrect for the reasons advanced in plaintiff’s answering
memorandum.21 But one more point bears mention.
As the parties agree, this issue too is governed by the substantive law of New York.

In applying New York law, this Court is bound by the decisions of New York’s highest court, the
Court of Appeals.22 That court held over one hundred years ago in a defamation case that “[i]n order
19
That is reflected in the current edition of the New York Pattern Jury Instructions, which
regularly are applied by both state and federal judges. N.Y. Pattern Jury Instrs. – Civil
§ 3.30 (2023). And the current instructions for punitive damages are consistent with how
the New York Pattern Jury Instructions were written before the Morsette decision as well,
indicating that its authors did not consider Morsette to have changed the relevant law on
punitive damages at all. See, e.g., N.Y. Pattern Jury Instrs. – Civil § 3.30 (2000).
20
Dkt 312 (Def. Mem.) at 15-17.
21
Dkt 330 (Pl. Mem.) at 4-5.
22
West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236 (1940) (“[T]he highest court of the state is
the final arbiter of what is state law. When it has spoken, its pronouncement is to be
accepted by federal courts as defining state law unless it has later given clear and persuasive
indication that its pronouncement will be modified, limited or restricted.”); Engel v. CBS,
9
to recover punitive damages, plaintiff [i]s bound to satisfy the jury by a fair preponderance of
evidence that defendant (1) was animated, in such publication, by conscious ill will toward
him. . . .”23 Despite this clear statement, the Appellate Divisions have since split on whether to apply

the preponderance or clear and convincing standard for punitive damages, with those that have
increased the burden of proof all having failed to recognize the Corrigan decision and unwittingly
imputed the “clear and convincing” standard for actual (or constitutional) malice to apply to
common law malice as well.24 But the New York Court of Appeals never has so much as hinted that
it would modify, limit, or restrict its rule in Corrigan, and the Second Circuit has made clear that it
takes the fair preponderance standard as the binding statement of New York law on this point.25

Inc., 182 F.3d 124, 125 (2d Cir. 1999) (the Court is “bound to apply New York law as
determined by the New York Court of Appeals”).
23
Corrigan v. v. Bobbs-Merrill Co., 228 N.Y. 58, 66-67 (1920) (emphasis added).
24
See Camillo v. Geer, 185 A.D.2d 192, 194, 587 N.Y.S.2d 306 (1st Dep’t 1992); Orange &
Rockland Utils., Inc. v. Muggs Pub, Inc., 292 A.D.2d 580, 581, 739 N.Y.S.2d 610 (2d Dep’t
2002); Sladick v. Hudson Gen. Corp., 226 A.D.2d 263, 264, 641 N.Y.S.2d 270 (1st Dep’t
1996); Munoz v. Puretz, 301 A.D.2d 382, 384, 753 N.Y.S.2d 463 (1st Dep’t 2003).
25
Celle, 209 F.3d at 184; Simpson v. Pittsburgh Corning Corp., 901 F.2d 277, 282-83 (2d Cir.
1990).
In Roginsky v. Richardson-Merrell, Inc. — the first Second Circuit case really to discuss the
issue for unintentional tort cases — the court held that punitive damages in such cases
“must be clearly established.” 378 F.2d 832, 850-51 (2d Cir. 1967) (internal citations and
quotation marks omitted). In doing so, however, the panel inexplicably did not address the
New York Court of Appeals’ Corrigan decision and instead cited to Cleghorn v. New York
Cent. & H.R.R. Co. — an earlier case that focused on the substantive conduct necessary to
justify punitive damages rather than on the applicable standard of proof. 56 N.Y. 44, 48
(1874). Moreover, the Roginsky panel explicitly noted defamation as an exception to the
“clearly established” standard for punitive damages, again relying on earlier Court of
Appeals cases instead of the more recent Corrigan decision. Roginsky, 378 F.2d at 843
10
Thus, the New York law binding this Court is that the standard of proof of punitive
damages in defamation cases is the preponderance of the evidence. Indeed, in the most thorough
analysis in this district of the relevant case law, then-Judge Sotomayor reached the same
conclusion,26 and numerous other courts in the New York system correctly have continued to apply

the preponderance of the evidence standard.27 There was no error in the Court’s charge to the jury
on this point.

C. Alleged Excessiveness of the Compensatory Damages Award
Contrary to the defendant’s arguments, Ms. Carroll’s compensatory damages were
not awarded solely for her emotional distress; they were not for garden variety harms; and they were

n.20. In any event, the Second Circuit implicitly overturned Roginsky in Simpson v.
Pittsburgh Corning Corp., holding in that products liability case that the appropriate
standard of proof for punitive damages under New York law is preponderance of the
evidence unless Congress or a higher authority said otherwise. 901 F.2d at 282-83. And as
noted, the Second Circuit in 2000 specifically reaffirmed the preponderance standard for
defamation cases in Celle, 209 F.3d at 184.
26
Greenbaum v. Svenska Handelsbanken, N.Y., 979 F. Supp. 973, 975-83 (S.D.N.Y. 1997).
27
See, e.g., In re Seventh Jud. Dist. Asbestos Litig., 190 A.D.2d 1068, 1069, 593 N.Y.S.2d 685
(4th Dep’t 1993); Stryker v. HSBC Sec. (USA), No. 16-CV-9424 (JGK), 2021 WL 5403720,
at *1 (S.D.N.Y. Nov. 17, 2021); Wat Bey v. City of New York, No. 01-CV-9406 (AJN), 2013
WL 12082743, at *24 (S.D.N.Y. Sept. 4, 2013), aff’d sub nom. Rivera v. City of New York,
594 F. App’x 2 (2d Cir. 2014); Tse v. UBS Fin. Servs., Inc., 568 F. Supp. 2d 274, 309
(S.D.N.Y. 2008); Marcoux v. Farm Serv. & Supplies, Inc., 283 F. Supp. 2d 901, 908
(S.D.N.Y. 2003); Webber v. Dash, 607 F. Supp. 3d 407, 412 (S.D.N.Y. 2022); Bouveng v.
NYG Cap. LLC, No. 14-CV-5474 (S.D.N.Y. June 29, 2015), Dkt 221 at 3; Fischer v. OBG
Cameron Banfill LLP, No. 08-CV-7707, 2010 WL 3733882, at *3 (S.D.N.Y. Sept. 24,
2010); Paravas v. Tran, No. 21-CV-807, 2022 WL 718842, at *9 (S.D.N.Y. Feb. 22, 2022),
report and recommendation adopted, 2022 WL 718587 (S.D.N.Y. Mar. 10, 2022).
11
not excessive, for all of the reasons stated in Ms. Carroll’s opposition brief.28 Though no more need
be said on the matter, it is appropriate to draw attention to several defamation cases in which courts
upheld comparable verdicts many years ago and, moreover, did so on much thinner evidence of

harm.
Mr. Trump’s malicious and unceasing attacks on Ms. Carroll were disseminated to
more than 100 million people. They included public threats and personal attacks, and they
endangered Ms. Carroll’s health and safety. The jury was entitled to conclude that Mr. Trump
derailed the career, reputation, and emotional well-being of one of America’s most successful and
prominent advice columnists and authors — to which she testified repeatedly29 — and award her
$18.3 million in compensatory damages. By comparison, in Prozeralik, the Appellate Division
almost thirty years ago upheld a $6 million award for reputational injury and $3.5 million award for

emotional and physical injury resulting from merely local television and radio broadcasts which had
suggested that the plaintiff had been the victim of an abduction due to ties to organized crime.30 In
Purgess v. Sharrock, the Second Circuit thirty years ago upheld a $3.5 million compensatory
damages award for reputational and economic injury for an anesthesiologist whose medical
background and record were defamed by his employer to other local hospitals after the plaintiff was

28
The Court applies to the alleged excessiveness of the compensatory damages award the
standard articulated in defendant’s similar motion in the related case between these parties.
Carroll v. Trump, __ F.Supp.3d ___, No. 22-CV-10016 (LAK), 2023 WL 4612082, at *18-
26 (S.D.N.Y. July 19, 2023).
29
See, e.g., Dkt 292 (Trial Tr.) at 70:25-71:24, 126:2-135:6, 137:2-139:21, 178:19-183:20.
30
Prozeralik v. Cap. Cities Commc’ns, Inc., 222 A.D.2d 1020, 1020, 635 N.Y.S.2d 913 (4th
Dep’t 1995); Prozeralik, 82 N.Y.2d at 470-72.
12
terminated.31 In Osorio v. Source Enterprises, Inc., this district seventeen years ago upheld $3.5
million in compensatory damages awarded to an employee of a hip-hop magazine against its co-
owner for emotional damages for publishing falsely that the employee had attempted to extort
them.32 And in Cantu v. Flanigan, the court fourteen years ago affirmed a $150 million award for

non-economic damages — after the Second Circuit already had affirmed a $38 million award for
economic damages — against a defendant who had defamed a Mexican business owner by asserting
that he was running a racketeering enterprise and conspiring with the Mexican government, drug
cartels, and Saddam Hussein.33
None of these prior examples involved publication of defamations as widespread and
destructive as Mr. Trump’s defamation of Ms. Carroll, and none involved a publisher of defamation
who was a president of the United States or anyone nearly as high-profile. And yet, after adjusting

for inflation to 2024 dollars,34 the compensatory damages upheld in these cases against claims of
excessiveness would have been as follows:
• $5.3 million for emotional damages in Osorio;
• $7.3 million for reputational and economic damages in Purgess;
• $19.2 million for emotional and reputational injury in Prozeralik; and
• $267.6 million for economic and non-economic damages in Cantu.

31
33 F.3d 134, 142 (2d Cir. 1994).
32
No. 05-CV-10029 (JSR), 2007 WL 683985, at *10 (S.D.N.Y. Mar. 2, 2007).
33
705 F. Supp. 2d 220, 226-31 (E.D.N.Y. 2010).
34
CPI Inflation Calculator, Bureau of Labor Statistics (Feb. 2024).
13
In sum, an award of $11 million in reputational and $7.3 million in non-reputational
compensatory damages is far from a historical anomaly in New York, before even considering the
unique scale of the defamation at hand. Mr. Trump’s argument that widespread and repeated

defamation at the hands of the United States president produced “garden variety” harms with a
recoverable limit of roughly $125,000 simply ignores reality and basic logic. Thus, the
compensatory damages awards were not excessive as a matter of New York law.

D. The Constitutionality of the Punitive Damages Award
The Supreme Court has set out three “guideposts” governing the constitutional review
of punitive damages awards: “(1) the degree of reprehensibility associated with the defendants’
actions; (2) the disparity between the harm or potential harm suffered and the size of the punitive

award; and (3) the difference between the remedy in this case and the penalties imposed in
comparable cases.”35 The Court agrees with plaintiff that each of these three guideposts more than
justifies the punitive damages awarded by the jury. However, it is worth emphasizing the particular
reprehensibility and severity that the jury could have found accurately characterized Mr. Trump’s
conduct, which the Supreme Court has said is “[p]erhaps the most important indicium of the
reasonableness of a punitive damages award.”36
The jury was entitled to find that “the degree of reprehensibility” of Mr. Trump’s

35
Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 165 (2d Cir. 2014) (quoting BMW of N. Am.,
Inc. v. Gore, 517 U.S. 559, 575 (1996)) (cleaned up).
36
Gore, 517 U.S. at 575 (1996).
14
conduct was remarkably high, perhaps unprecedented.37 Far from being purely “defensive,” there
was evidence that Mr. Trump used the office of the presidency — the loudest “bully pulpit” in
America and possibly the world — to issue multiple statements castigating Ms. Carroll as a

politically and financially motivated liar, insinuating that she was too unattractive for him to have
sexually assaulted, and threatening that she would “pay dearly” for speaking out.38 The jury could
have found that Mr. Trump wielded his position as arguably the most powerful and famous man in
the world to broadcast his lies to millions of dedicated followers in an effort to destroy Ms. Carroll’s
credibility, to punish her for coming forward, and to deter other women from doing so as well. It
could have found also that he continued his attacks over the nearly five years that it took this case
to come to a jury verdict.39 And there was evidence that Mr. Trump’s statements about Ms. Carroll
only increased in frequency and vitriol as trial approached, with Mr. Trump repeating the same or

similar attacks on Ms. Carroll despite knowing that a jury and the Court already had held his similar
2022 statement to have been defamatory.40
The jury in this case at least arguably was entitled, moreover, to conclude that Mr.
Trump’s continued defamation of Ms. Carroll — even during the course of trial — in turn warranted
a finding that he would not stop attacking Ms. Carroll unless faced with a significant deterrent, a

37
Id.
38
See Dkt 304-4; Dkt 304-5; Carroll, No. 20-CV-7311, Pl. Ex. 3 at 2.
39
See, e.g., Dkt 304-14-29.
40
Id.
15
critical function of substantial punitive damages awards.41 But beyond his out-of-court statements
disparaging Ms. Carroll during trial — many of which were introduced in evidence42 — the jury
could have found that Mr. Trump’s demeanor and conduct in the courtroom itself put his hatred and

disdain on full display. Mr. Trump could be heard repeatedly complaining to his counsel about the
proceedings, so much so that plaintiff’s counsel twice requested that the Court instruct him to stop.43
In particular, during Ms. Carroll’s testimony, the jury could have found, Mr. Trump could be heard
making audible comments that Ms. Carroll’s testimony was false, that the proceedings were a “witch
hunt” and a “con job,” and most notably, that his earlier statements disparaging Ms. Carroll were
“true.”44 And, most dramatically, mere minutes after plaintiff’s counsel began her closing argument,
Mr. Trump conspicuously stood and walked out of the courtroom for no apparent reason save to
evidence his disapproval, though he was present again when Court resumed later that morning and

41
See Jennings v. Yurkiw, 18 F.4th 383, 392 (2d Cir. 2021) (“[P]unitive damages awards that
are a multiple higher may be warranted because of the deterrent function of punitive
damages.”) (footnote omitted).
42
See, e.g., Dkt 304-27-29.
43
See, e.g., Dkt 292 (Trial Tr.) at 118:17-24 (plaintiff’s counsel’s first application to the Court
concerning Mr. Trump’s interruptions during the proceedings); id. at 120:17-20 (the Court
instructing Mr. Trump to “take[] special care to keep his voice down when he’s conferring
with counsel so that the jury does not overhear it”); id. at 163:16-19 (Mr. Trump requesting
in front of the jury that a video exhibit be played in full); id. at 167:3-11 (plaintiff’s
counsel’s second application to the Court concerning Mr. Trump’s interruptions); id. at
167:12-18 (the Court’s second warning to Mr. Trump to contain his errant remarks).
44
Id. at 118:17-24, 167:3-11.
When the Court issued its second warning to Mr. Trump concerning his actions and
cautioned that they might result in him being excluded from the courtroom, Mr. Trump
silenced any doubt as to his intentions by responding “I would love it.” Id. at 167:12-19.
16
remained for his own counsel’s entire summation.45
On this exceptional record, the punitive damages evidence passes constitutional
muster.

Judgment as a Matter of Law
Mr. Trump argues in substance that the jury could not reasonably have found that his
June 21 and 22, 2019 statements caused any harm to Ms. Carroll because the proof failed to exclude
the possibility that some part of the damage to Ms. Carroll, however small, was attributable at least
in part to Ms. Carroll’s own allegations against Mr. Trump, which were published in an article in The
Cut, along with a White House denial, a few hours before the first of the two statements that were
the subjects of this action.

Mr. Trump’s argument is entirely without merit both as a matter of law and as a
matter of fact for all of the reasons articulated in Ms. Carroll’s memorandum of law in opposition
to his motion.46 Among other things, it ignores the fact that, as the jury and/or the Court concluded,
45
Dkt 301 (Trial Tr.) at 695:7-10, 733:8-9.
As the Court would have reached exactly the same result here even in the absence of Mr.
Trump’s actions during the trial, it has no occasion to discuss whether a defendant’s actions
in the jury’s presence during the course of a trial appropriately may be considered in
determining punitive damages. But see Herbert v. Lando, 441 U.S. 153, 164 n.12 (1979)
(“any competent evidence, either direct or circumstantial, can be resorted to, and all the
relevant circumstances surrounding the transaction may be shown, provided they are not too
remote, including threats, prior or subsequent defamations, subsequent statements of the
defendant, circumstances indicating the existence of rivalry, ill will, or hostility between the
parties, facts tending to show a reckless disregard of the plaintiff’s rights. . . .”); Celle, 209
F.3d at 184-85 (citing Herbert).
46
Dkt 332 (Pl. Mem.).
17
Mr. Trump’s June 21 and 22 statements were false, defamatory, and made with both actual and
common law malice. It ignores the fact that those defamatory statements were viewed between at
least 85 to 104 million times, whereas there is no evidence at all as to the dissemination of The Cut

article to which defendant seeks to assign all of the damages suffered by Ms. Carroll and which was
not even alleged to have been defamatory. It ignores as well the fact that the jury was entitled to
believe Ms. Carroll’s testimony as to the impact of the June 21 and 22 statements on her. And it
ignores the lack of any persuasive legal authority supporting Mr. Trump’s contention.47 Indeed, the
law is clear that when competing theories and evidence are presented at trial, the issue of causation
ultimately is one for the jury, which the Court should not ordinarily disturb.48 In short, the argument

47
The defendant’s reliance on Story Parchment Co. v. Paterson Parchment Paper Co., 282
U.S. 555 (1931), is seriously misplaced.
First, he relies on this purported quotation from that decision: “any degree of speculation
in computing the amount of damages unless and until causation of damages is first
established.” Dkt 310 (Def. Mem.) at 4 (citing Story Parchment, 282 U.S. at 562). In fact,
however, that language does not appear in the Supreme Court’s opinion. Indeed, the
erroneous quotation in defendant’s memorandum does not make linguistic sense.
Second, Story Parchment was decided under the federal antitrust laws. It has nothing to do
with defamation cases governed by New York law.
Finally, Story Parchment stands simply for the general proposition that uncertainty as to the
amount of damages, rather than the fact of damages, does not preclude recovery for their
reasonable and approximate amount. Story Parchment, 282 U.S. at 562-63; contra Dkt 312
(Def. Mem.) at 19-25. It does not support Mr. Trump’s contention that courts should
overturn a jury verdict as a matter of law where the parties present competing evidence of
causation — indeed, Story states essentially the opposite. Story Parchment, 282 U.S. at 566
(“Whether the unlawful acts of respondents or conditions apart from them constituted the
proximate cause of the [injury] was a question, upon the evidence in this record, for the jury,
‘to be determined as a fact, in view of the circumstances of fact attending it.’” (citing
Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U.S. 469, 474 (1876))).
48
See id.; Ernest v. Red Creek Cent. Sch. Dist., 93 N.Y.2d 664, 674 (1999) (“‘Proximate cause
18
— which Mr. Trump previously made to the jury, conspicuously without success, and which defies
common sense —- does not warrant dismissal as a matter of law.

Conclusion
Accordingly, Mr, Trump’s motions for a new trial and for a judgment as a matter of
law (Dkt 309 & 311) are DENIED.
SO ORDERED.
Dated: April 25, 2024

Lewis i
United States District Judge

is a question of fact for the jury where varying inferences are possible’) (quoting Mirand
v. City of New York, 84.N.Y.2d 44, 51 (1994)); see also Mertsaris v, 73rd Corp., 105 A.D.2d
67, 83, 482 N.Y.S.2d 792 (2d Dep’t 1984) (“[A] plaintiff need not eliminate entirely all
possibility that a defendant’s conduct was not a cause. It is enough that he offer sufficient
evidence from which reasonable men might conclude that it is more probable than not that
the injury was caused by the defendant.”); N.Y. Pattern Jury Instrs. — Civil § 2.70 (2023)
(“[The jury] may . . . decide that a cause is substantial”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10660362. Public record. Not legal advice.