What the Media has not Told You about Carroll vs. Trump
Even if the case is not reversed completely, Carroll won't see $83.3 million dollars
An abridged version of this article was published by American Thinker on February 15, 2024, for those who prefer brevity.
By now, everyone in the entire world heard about a Federal Jury in New York’s award of $83 million dollars to E. Jean Carroll against Donald J. Trump for what she claims was a sexual assault in a Bergdorf’s dressing room which occurred, according to her, in 1994, 1995, 1996 or so. 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 just for readers to understand the case and its complicated procedural posture. The case, or cases I should say, are procedurally very confusing. I will break the cases down to the barest of bare bones to make the situation as understandable as possible.
E. Jean Carroll is a journalist who wrote an advice column for Elle magazine for over two decades. In 2019, she published a book entitled What Do We Need Men For? A Modest Proposal 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 or so years after the incident allegedly occurred, 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 following year, the United States of America 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 a Federal employee who is sued for acts which occurred in the course of employment. Carroll could not sue over the sexual assault claims in 2019, because any such claims were lost due to the passage of time due to the applicable 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 for one year. This allowed Carroll to file suit against Donald J. Trump over the alleged rape itself. She did so 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. The Westfall Act was not implicated by these new claims, since Donald J. Trump was not President when the alleged sex assault or alleged 2022 defamation occurred. (I always think of President Trump as New Yorker since he lived there most of his life and, as a result, I originally believed the only jurisdictional basis for the 2022 Carroll claims were the relationship to the 2019 suit which was removed to Federal Court. This type of jurisdiction is known as supplemental jurisdiction. Readers may recall, however, that President Trump moved to Florida in 2019. Thus, Carroll filed the 2022 suit in Federal Court under Federal Diversity Jurisdiction, since she and Trump are citizens of different states.)
In May 2023, a Federal Jury in New York awarded Carroll $5 million dollars in combined damages against Trump. This was on the 2022 lawsuit over the alleged mid-1990s sexual assault itself and the 2022 defamation claims. The reason this case went to trial first is because (1) the judge refused to consolidate or combine the 2019 and 2022 cases and (2) the 2019 case was held up over appeal issues about the Westfall Act (that is, the USA being substituted for Trump as the Defendant). Thus, the suit filed in 2022 went to trial first and resulted in $5 million in damages, with just over $2 million awarded for the “sexual abuse” (the jury actually found Carroll did not prove the “rape” allegation) and $2.98 million for defamation. The judgment in that case is currently 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. Trump and his legal team have a variety of issues to raise on their appeal of this verdict as well. I may write about some of those issues, but for now, I want to address an issue I don’t hear anyone talking about, namely, that no matter what happens with the merits of either of these appeals, E. Jean Carroll will not collect this $83.3 million. The reason is the compensatory damage award is grossly excessive and the punitive damage award violates the Due Process Clause of the 14th Amendment.
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. This is all covered in the Gasperini Supreme Court case which just happened to also involve a judgment from New York.
A review of New York case law on defamation reveals no comparable awards to this one, in fact it is not even close. Not to mention, Carroll already has a multi-million dollar verdict on defamation damages on appeal (the 2022 case) and she presented much of the same testimony in support of her defamation damages in that case. The rule in the U.S. Second Circuit Court of Appeals (the court with supervisory jurisdiction over the district court presiding over this case) is the award must be lowered to the maximum amount which can be recovered, known as the “maximum recovery rule.” See Rangolan v. County of Nassau, 370 F.3d 239 (2nd Cir. 2004).
This same trial judge refused to lower the defamation damage award made in the earlier case. The earlier case involved $2.7 million in defamation damages, broken down as follows: $1.7 million on the “reputation repair program,” another $1 million in defamation damages and $280,000 in punitive damages. A screenshot from the judge’s ruling on the damages is here:
As noted, the trial court refused to revise or lower those damages (that ruling is currently on appeal as well), relying on a handful of cases awarding $3.5 million in compensatory damages for similar defamation. There are no $18.3 million compensatory damage awards by New York State courts. None. The only remotely helpful case Carroll will be able to reference is a Federal case, Cantu v. Flanigan, involving an award of $38,000,000 in economic losses and $150,000,000 in non-economic damages for a man in the shipbuilding business who lost tens of millions of dollars due to a campaign to label him as a gangster apparently conducted in an effort to extort him or the company he worked for. The false accusations in that case resulted in the victim’s loss of a $300 million dollar shipbuilding contract, the loss of other contracts and criminal investigations into the victim by Mexican and American authorities. The Cantu case is not remotely similar to Carroll’s claims against Trump.
New York law does not support compensatory damages of more than $3 or $4 million, nowhere near the $18,300,000 awarded to Carroll by the jury. At the very least, Carroll’s compensatory damages should be reduced from $18.3 million to $3 or $4 million.
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, 517 U.S. 559 (1996), 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. While the Court provided various considerations to take into account when reviewing a punitive damage award for excessiveness, one of the primary concerns is the ratio of the compensatory damages to the punitive damages. Later, in State Farm v. Campbell, 538 U.S. 408 (2003), the Supreme Court observed when compensatory damages are “substantial” then a “lesser ratio, perhaps, only equal to compensatory damages, can reach the outermost limit of the due process guarantee.”
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 Jones v. United Parcel Service (10th Cir. 2012)($630,000 compensatory award was “substantial,” resulting in a $2,000,000 punitive damage award being lowered to $630,000) and Bach v. First Union National Bank (10th Cir. 2007)($400,000 was “substantial,” resulting in $2.2 million punitive award being reduced to $400,000) and Williams v. Conagra Poultry Co., (8th Cir. 2004)($600,000 was substantial, resulting in $6 million punitive award being lowered to $600,000).
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).
Even if the Court twists and contorts itself into allowing the $18.3 million in compensatory damages to somehow stand, the punitive damages will necessarily be reduced to an equivalent amount of $18.3 million resulting in a massive reduction in the total damages to $36,000,000.00.
While, any of these amounts are unreasonably high for the claim of a person who cannot remember the YEAR in which a sexual assault supposedly took place, the overwhelming likelihood is E. Jean Carroll will not recover anywhere near $83.3 million, even if Trump’s efforts to get the entire judgment reversed prove unsuccessful.
(My new book Fake News Exposed: 25 of the Worst Media Lies about Conservatives, Guns, COVID and Everything Else is out at Amazon. You may also pick up a copy of one of my other books at Amazon as well.)
You make a fantastic logical case. But my faith in the justice system has been destroyed. What’s to stop any appeals court from upholding the judgment simply because they hate Trump?