SCOTT SAPULPA v. GANNETT CO INC (2025)

1 This appeal stems from a jury verdict against the defendant news organization for defamation and intentional infliction of emotional distress. The underlying facts arise from the reporting by the newspaper of a hate-filled rant of racist and vulgar statements that were disturbingly spewed over the internet by a sports announcer. The hate-filled rant occurred during a “hot mic” moment prior to a girls high school basketball game. The long-time Oklahoma City, Oklahoma newspaper, The Oklahoman, posted a story concerning the incident the next day on its web-based breaking news platform and erroneously attributed the racist and vulgar comments to the Appellee/Plaintiff, Scott Sapulpa. Following a nine-day jury trial, a jury found in favor of Sapulpa and returned a verdict against the Appellant/Defendant, Gannett Co., Inc., the owner of The Oklahoman, awarding actual damages in the sum of $5 million and punitive damages in the sum of $20 million.  ¹ Gannett appealed and, based upon our review of the entire record, we affirm the judgment of the trial court dated February 20, 2024, in part and reverse in part upon condition of the filing of a remittitur by Sapulpa as ordered herein. While we affirm the award of actual damages, we also find that the $20 million punitive damages award was unconscionable, grossly excessive, and much larger than reason dictates to be necessary to deter such conduct in the future and that the evidence did not satisfy the required standard of proof for Category II and III punitive damages. We also find that punitive damages were not, as a matter of law, appropriate on the IIED claim. We find that remittitur is proper for all amounts in excess of $2.5 million for punitive damages. Mr. Sapulpa shall have 30 days after issuance of mandate to file for remittitur or the matter is reversed and remanded for a new trial on the issue of the amount of punitive damages consistent with this Opinion.

BACKGROUND

Introduction

2 The procedural history of the case began on March 29, 2021, when Sapulpa filed his Petition, joined by several entities who were also named as Plaintiffs (although the entity plaintiffs subsequently dismissed their claims).  ² Gannett Co., Inc. (Defendant/Appellant), a Delaware corporation, was the sole Defendant at the time of the jury trial.

3 The jury trial ³ began on January 23, 2024, and concluded on February 2, 2024. The claims tried to the jury were defamation and intentional infliction of emotional distress. In a two-stage proceeding, the jury returned verdicts against Gannett, awarding $5 million in compensatory damages and $20 million in punitive damages.

The “Hot Mic” Incident

4 The underlying facts that led to the defamatory publication by The Oklahoman occurred on March 11, 2021, when Norman High School played Midwest City in the quarterfinals for the Oklahoma High School Girls State Basketball Tournament.  ⁴ The game was broadcast on the NFHS Network through OSPN, a live-streaming service owned by Matt Rowan. Rowan and Sapulpa were the only announcers. Sapulpa, however, was not employed by Rowan and, instead, merely volunteered his time on the broadcast as a substitute, co-commentator. During the playing of the national anthem, members of the Norman High School team knelt on one knee in silent protest. Believing all microphones had been muted, Rowan, the main announcer, went on a tirade of racial invectives and obscenities directed at the kneeling players from Norman High School. While Rowan's microphone was muted, Sapulpa's microphone remained open. Rowan's tirade included calling the kneeling players “f***ing [N-word]s.” The racial slur and offensive commentary were broadcast to the NFHS subscribers via the livestream. It was undisputed at trial that Rowan, not Sapulpa, made the racist comments. When the national anthem was over, the men began the call of the game and worked to the game's conclusion with no apology or other recognition that the incident had occurred.  ⁵

Publication

5 The following morning, March 12, 2021, Frankie Parks -- a coach at Norman High School -downloaded and posted a video clip on social media in which the racial slur could be heard. The post by Coach Parks added the following statement: “Hey NFHS Network looks like you forgot to cut the Mic!!! ․ THIS IS WHY THEY KNEEL!!!”. Although Coach Parks did not identify the names of the announcers in his post, his social media post “went viral”. Hundreds of comments were posted, many of which are included in the record.  ⁶ After the incident became widely known on the morning of March 12, 2021, various public officials issued statements condemning the racist comments, beginning with the Superintendent of Norman Public Schools. Although that statement also did not name the announcers, it included the following: “[l]ast night during the Norman High School girls’ basketball game versus Midwest City in the Oklahoma 6A State Basketball Tournament, National Federation of High School (NFHS) Network announcers on a live stream broadcast made racist and hateful comments targeted at our Norman High student athletes. The announcers were contracted by OSSAA for the state tournament ․ We condemn and will not tolerate the disgusting words and attitudes of these announcers.” The Tahlequah Athletic Director also issued a statement critical of the “announcers”, without giving their names. The OSSAA condemned the comments as well, stating: “[o]n behalf of the NFHS Network and the OSSAA, we sincerely apologize that this happened at one of our events. While we are currently investigating the incident, this crew will not be doing any more games for the remainder of our championship.” The record contains additional condemning statements from NFHS, the State Superintendent of Public Instruction, State Representative Emily Virgin, and the Mayor of Norman.

6 Sapulpa was employed at the time as a middle school social studies teacher in Hulbert, Oklahoma. Having played collegiate football at Haskell Indian College, Sapulpa worked as a coach for 30 years, during which he coached at several schools, including seven or eight years at Muskogee High School. Sapulpa's first head coaching job was at Hulbert High School, where he served as the football coach during two seasons (2019-2020). He voluntarily resigned his coaching position at the end of the 2020 season but continued to teach in his middle school social studies position until his contract was non-renewed at the end of the school year.

7 At approximately 11:00 a.m., on March 12, 2021, The Oklahoman -- the long-time Oklahoma City, Oklahoma based newspaper that is owned and operated by Gannett -- reported the incident as a breaking news story on its online platform. Several updates occurred throughout the day.  ⁷ The paper did not initially identify a speaker of the racist comments. However, the paper issued an update at 12:37, p.m. in which the paper incorrectly identified Sapulpa as the announcer responsible for the racist tirade.  ⁸ The article read, in part:

An announcer for an online broadcast directed highly inflammatory, racist comments toward the Norman girls basketball team ahead of its quarterfinal matchup with Midwest City on Thursday at Sapulpa.

The announcer's comments on a live microphone were made after members of the Norman girls basketball team kneeled for the national anthem.

The announcer, identified by multiple sources as Scott Sapulpa, was hired by the Oklahoma Secondary School Activities Association and was broadcasting on the NFHS Network, can be heard saying ‘They're kneeling? (Expletive) (racial slur). I hope Norman get [sic] their ass kicked. (Expletive) them. I hope they lose ․’.

‘They're going to kneel like that? Hell no.’

***

Def.’s Ex. 11, pages G0105-G0108.

8 The Oklahoman had assigned one of its high school sports reporters, Cameron Jourdan, to take the lead in covering the incident. Defendant's Ex. 14 is a compilation of the internal, electronic communications regarding the incident at The Oklahoman on March 12, 2021. The first relevant message on the internal system was by Jourdan, at 10:08, a.m., to the effect that he had called David Jackson, the Executive Director at the OSSAA, for comment. That exhibit further shows every comment made by the various reporters and editors throughout the day. Significantly, Ryan Sharp, the paper's news director, twice instructed the group prior to 12:37, p.m., that the paper needed two sources before it could release the name of the person who made the racist comments (i.e., at 12:18, p.m. & 12:28, p.m.). While Jourdan was working on the story of the racist comments, the paper's internal messaging system indicated that Jourdan also continued to cover the girls state basketball tournament in Sapulpa, Oklahoma, as he wrote at 10:19 a.m., that he was “going to be at Sapulpa at 2 for that game ․”. At 4:25, p.m., Jourdan wrote that he had “[b]een on the phone and ‘covering’ the game․”.

9 The article was updated at 3:37, p.m. to report, in part, that “Matt Rowan ․ told The Oklahoman his crew broadcast the games ․ on Thursday and that it was one of his announcers who made the racially insensitive remark”. No mention was made regarding Sapulpa or the paper's earlier incorrect reporting of his name. At 4:53, p.m., Jourdan posted on the paper's internal messaging system that “Rowan is the one who said it. He just put out a statement․” The article was updated at 5:35, p.m. to report that Rowan admitted to being the offending announcer: “Matt Rowan ․ told The Oklahoman he was the person who made the racially insensitive remarks․ Rowan said Scott Sapulpa, whom The Oklahoman previously reported as having said the remarks, did not make any of the offensive comments.” Def.’s Ex. 11, pages G0148-G-0154.

10 At 8:13, p.m., on March 12, 2021, Senior Editor Don MeCoy sent Jourdan a text in which he acknowledged that the paper operated with excessive speed, driven by a “competitive situation”, when it determined to identify who it believed made the racist comments:

I just want to make sure you know that you did nothing wrong today. You worked your tail off to get the news, and then your editors -- particularly me -- did you a disservice. We got in too much of a hurry in a competitive situation. But it was clear that we were going to eventually know exactly who said those vile things. ‘What’ was the big news; not so much the ‘who’.

It's on us, not you, that we printed an inaccuracy. Keep doing what you're doing. And I'm going to work to do better next time.

The next morning, March 13, 2021, Sapulpa's name did not appear in the print edition of the paper.

The Jury Trial

11 To establish the actions of The Oklahoman at trial, Sapulpa's first two witnesses were both editors of the paper. The Executive Editor of The Daily Oklahoman, Ray Rivera, testified first. Rivera had been in that position only since February of 2021, testifying he was still working remotely from Seattle, Washington on March 12, 2021. The Sports Editor, Jeff Patterson, was out of the office on March 12, 2021, for personal reasons, which caused the story to be managed by the news director, Ryan Sharp, and the managing editor, Don MeCoy. Most significantly, Rivera conceded that the paper's management of the story did not meet industry standards, in particular, because reporter Jourdan, admittedly, did not have an official source that could confirm its reporting that Sapulpa made the racist comments. Rivera characterized the incident as a “fast-moving” story and that, while the story related to sports, it also dealt with the larger context of racism in Oklahoma. Rivera added that, while Jourdan did not have an official source, he understood reporter Jourdan was confident in his reporting, to the effect that Jourdan believed Sapulpa was the speaker of the racist comments. As detailed infra., Jourdan testified to relying upon the Superintendent of Tahlequah Public Schools, Matt Cloud, as the alleged source for his report that Sapulpa made the racist comments. He also was relying at that time on comments by David Jackson, Executive Director of the OSSAA, not as to the name of the speaker of the racist comments, but for background details concerning the event. It also was established that, at 2:20, p.m., Rivera lead a conference call with various newsroom employees, including Jourdan, in which Rivera directed that, until the paper gets someone who is on the record, Sapulpa's name should be taken out. That prompted an update at 3:05, p.m., in which the paper reported, in part:

Multiple sources identified the person that uttered the racist remarks as a former high school football coach, but The Oklahoman is not disclosing that person's identity until it can be confirmed on the record. Attempts to reach the person identified have been unsuccessful.

12 Ryan Sharp, the news director, testified next, adding that he made the decision to publish the story on March 12, 2021. He agreed that the story had been republished each time it was updated during the afternoon of March 12, 2021. Sharp also made the decision to set up a conference call with Rivera at 2:30, p.m. after the paper received several outside comments defending Sapulpa and advising that Sapulpa had not made the racist comments.

13 Matt Cloud, the Athletic Director at Tahlequah Public Schools, was the third witness and specifically denied being a source for Jourdan's account that Sapulpa made the racist comments. He agreed that he had spoken to Jourdan on the morning of March 12, 2021, but denied telling Jourdan the name of the speaker that had made the racist comments. Cloud agreed, however, that he, in fact, knew which of the announcers made the racist comments. Cloud further agreed that Jourdan stated to him that he (Jourdan) had heard that Sapulpa had made the racist comments and that he (Cloud) responded with “that's what I'm hearing.” Cloud explained his response by adding that he had seen “all over social media” the accusation about Sapulpa earlier that morning, but that he did not mean to confirm reporter Jourdan's statement. Cloud agreed that, based on that exchange with Jourdan, there could have been a misunderstanding between him and Jourdan.

14 Jourdan testified next and agreed that he broke the story which turned out to be false, wherein Sapulpa was named as the speaker of the racist comments. While Jourdan agreed that naming Sapulpa was incorrect, he testified that, at the time, he believed that Sapulpa was the speaker of the racist comments. Jourdan testified that, around 10:00, a.m., he called David Jackson, Executive Director of the OSSAA, who said “he had heard Scott Sapulpa was one of the announcers.” Jourdan recounted that, around noon, he received a text message from a Tulsa World reporter, Ben Johnson, that forwarded a Facebook post by Sapulpa indicating that he was going to be broadcasting the game. Johnson followed up shortly with a text to Sapulpa's phone number. Jourdan tried to call Sapulpa at 12:26, p.m., but got no answer. He did not leave a message, as Sapulpa's mailbox was full. Jourdan also did not attempt to reach out to Sapulpa again by telephone or by either Facebook or any social media messaging. At 12:29, p.m., Jourdan called Cloud. According to Jourdan, Cloud told him that Sapulpa made the racist comments. Jourdan further attested that he firmly believed Sapulpa had made the racist comments based on his recollection of his interview with Cloud at 12:29, p.m. Jourdan testified that Cloud “said he did not want his name used in the reporting.” Following the 12:37, p.m., update of the story by The Oklahoman (that first named Sapulpa), Jourdan posted the story on a personal social media account.

15 Various responses to the 12:37, p.m., update were received at The Oklahoman. At 12:49, p.m., a social media direct message was received by Jourdan from @Calvin_McCoy, which included an excerpt from the broadcast video wherein Rowan identified himself as the main announcer.  ⁹ A person named Ashley Rogers also reached out to both Jourdan and a fellow sports reporter, Ryan Aber. Rogers testified that she has some news reporting experience, having done “some stream work for the Tahlequah Daily Press”. At 12:48, p.m., Rogers sent Jourdan, via a social media direct message, a video clip that was similar to the one Jourdan received from @Calvin_McCoy, in which the voices of the announcers were clearly identifiable.  ¹⁰ Jourdan did not open either video clip. He also did not know Rogers. On the other hand, fellow sports reporter Ryan Aber did know Rogers. At 12:59, p.m., Aber texted Jourdan that “Know [sic] someone from Tahlequah/Hulbert [referring to Rogers] that's saying that she and others from the area think its Matt Rowan and not Scott Sapulpa just based on the voice and their experience․”. Jourdan responded via text: “I have two people tell[ing] me it was Sapulpa, including the Tahlequah Schools, who canceled the contract with them.” Jourdan added that the two sources to whom he was referring were Cloud and David Jackson. Jourdan then advised Sharp (in the newsroom) of the conflicting reports and that is what prompted Sharp to arrange the conference call with Rivera. When Jourdan was asked at trial if he believed the story was properly sourced, he answered “I do.”

16 David Jackson testified he had spoken by telephone with Jourdan at approximately 10:00 a.m., on March 12, 2021. He advised Jourdan at that time that he was aware of the incident the day before, but did not know which announcer made the racist remarks. The OSSAA put out a statement condemning the remarks on the morning of March 12, 2021. Later in the day, around 3:40, p.m., Jackson called Jourdan and advised (off the record) “it was Matt Rowan who had spoken the racist comments.”

17 Rogers testified that, while she had no affiliation with The Oklahoman, she reached out to both Jourdan and Aber to advise that the paper's 12:37, p.m., update had incorrectly identified Sapulpa as the speaker of the racist comments. While Rogers now lives in Tulsa, she attested to knowing Sapulpa since childhood, as they are both from Hulbert, Oklahoma. Rogers also testified that she had known Matt Rowan since her middle school days (when Rowan was a youth pastor at her church). Rogers had known Aber since her twenties. Rogers explained that she saw the social media post put out by Jourdan which included a copy of the online article by The Oklahoman. She forcefully advised both Jourdan and Aber that, based on her familiarity with both Rowan and Sapulpa, she knew that Rowan -- not Sapulpa -- had made the racist comments. Rogers’ testimony is corroborated by Def.’s Ex. 14, the paper's internal messaging system, showing Jourdan's group message at 1:09, p.m., as follows: “․ I've had a couple people try to reach out and say ‘it's not Sapulpa, it's the other guy.’ Who's name is Matt Rowan, who owns the streaming site. But again, I have it from two people it was Sapulpa.”

18 At trial, Sapulpa called five more witnesses who were familiar with Sapulpa and the sound of his voice. Each of those five witnesses heard the video clip on March 12, 2021, and immediately knew that Sapulpa did not make the racist comments. One of those witnesses also had reached out to Jourdan on March 12, 2021, in an attempt to advise him of the error in reporting. Bobby Klinck, the Athletic Director at Sand Springs High School, testified that he, in fact, reached out to Jourdan on March 12, 2021, via text at 1:52, p.m., and, as shown by Pl.’s Ex. 74, advised “I worked with Scott at Muskogee and know his voice. His voice sounds like the second announcer not the one saying all the racist stuff.” Jourdan responded: “Hey coach. You're not the first person who has told me this. There are conflicting reports out there. I published his name because I had three people, all independent of each other, tell me it was him․ I have seen those reports and am still looking into it.”  ¹¹ When asked about Sapulpa's employment opportunities now as a coach, Klinck testified, in part, that “I'd say it would be very difficult․ That there would just be too much baggage with it in terms of the community and just people being able to look it up ․”.

19 Sapulpa also called witness Matt Hennessy, a long-time football coach who, at the time of trial, had coached nine years at Pawhuska High School. Coach Hennessey had previously coached ten years in Muskogee, where Sapulpa had worked for him as an assistant football coach. Sapulpa also had worked two different times as an assistant football coach for Coach Hennessy in Pawhuska. Coach Hennessey testified, in part, that he saw the video clip of the incident on March 12, 2021, and “said, ‘It wasn't Scott. It wasn't him that said it.’ ” When asked how the incident had changed Sapulpa, Coach Hennessey testified, in part, “it changed him completely. All of a sudden he went into a shell. He was scared to death to come out of the house․ His kids are scared․”. When asked about Sapulpa's employment opportunities now as a coach, Coach Hennessy stated, in part, “[s]o I think he could probably get hired in the state locally, small schools. But other than that, he's -- in my opinion, ruined as a coach right now. He's done․”.

20 Sapulpa called witness Bobby Jefferson, a long-time coach in Muskogee, now a member of the Muskogee School Board. He testified, in part, that, after listening to the audio, “within five seconds of that, I was like, ‘that's not Scott’․ He's got that little Hulbert twang to him․ I didn't know who it was, but I knew it wasn't Scott.” When asked to describe Sapulpa's “situation now as a coach given that he was falsely named as the speaker of these racist comments by the Oklahoman ․”, Jefferson testified, in part, that “I'd like to hire him and I would. But -- and -and this nothing against him ․ I couldn't hire him ․ because of ․ what's on social media.” Similar testimony was offered at trial by witnesses Alton Lusk and Anthony McNac.

21 Joe Kaplan testified as an expert in journalism and the applicable journalistic standard of care. Kaplan is a professor at Syracuse University and described the reporting by The Oklahoman in this matter, in part, as follows: “in my 44 years as a journalist and a journalist educator, I have not seen a case as egregious in terms of journalistic malpractice, in terms of recklessness, in terms of just, basically, ignoring all ethical standards of being a journalist, from not taking notes to granting anonymity to people who didn't ask for it to intentionally lying to the readers and to the people who are trying to set them straight.” He expressed further criticism that Jourdan called Sapulpa once for a comment and, when Sapulpa did not answer, never called him again. Kaplan, similarly, criticized the fact that Jourdan did not take notes during the day to record his interviews. Kaplan complained that the editors at The Oklahoman “clearly did not follow the standard of care ․ and say to him [i.e., Jourdan] ‘How do you know this? Who's your source? What did your source actually tell you?’ ” Kaplan compared “calling someone a racist ․ [to] calling someone a pedophile.” Kaplan concluded his direct testimony by agreeing that The Oklahoman's “reporting and their failures to meet the standard of care diminished the important value that the story could have been.” During cross-examination, Kaplan agreed that, because fellow reporter Aber texted Jourdan at 12:59, p.m., on March 12, 2021, and advised that Rogers “likes Scott and doesn't like Matt so there is some bias there”, Jourdan should have been “a little skeptical of her ․”; that the update at 3:57, p.m. was a truthful report; and, that the reporting at 5:00, p.m. (to the effect that “after Rowan came out with his mea culpa and admitted it was him ․ and ․ said again it was not Sapulpa ․”) was also a truthful report. In one exchange during cross-examination, Kaplan was asked whether he thought The Oklahoman should have been more forthcoming and put additional information in the online updates on March 11, 2021, after it became aware of the previous error in naming Sapulpa as the announcer. In response, Kaplan stated that, “I think they should tell the truth․ They knew what they were writing was false, and they wrote it anyway.” On redirect, Kaplan testified that the reporting of the incident by The Oklahoman did not demonstrate “reasonable editorial judgment”.

The Injuries to Sapulpa

22 Eric Rose, an expert in reputational damage repair, testified as to the sum it would cost to repair Sapulpa's reputational damage on the internet. Gannett re-urged at trial its Daubert challenge to Rose's testimony, which the trial court overruled. Rose stated that $860,000.00 represents the cost of a two-year program needed to repair Sapulpa's reputation on the internet (i.e., to repair what happens when a person goes on-line and searches Sapulpa's name). Rose believed that the story “went viral” after The Oklahoman shared the story to the USA Today network (a sister company within the Gannett media family). Rose agreed on cross that he did not know Sapulpa's reputation on a local basis and did not know if anyone changed their opinion of Sapulpa after having read the article.

23 Stan Smith, an economist, testified that Sapulpa was earning $62,000.00 per year while working for Hulbert Public Schools. He suffered an economic loss of $34,824.00, while unemployed in 2021, until he was hired in Pawhuska. Smith agreed that Sapulpa's economic losses ended when he began work in Pawhuska. Smith also testified Sapulpa did not quantify any purported business losses by the Pullman360 entities, admitting Pullman360 was not profitable prior to the article.

24 Sapulpa was the last witness in the Plaintiff's case-in-chief. His testimony included the fact that he went to high school in Hulbert, Oklahoma, where he became friends with Rowan. Rowan was a youth pastor at the church where Rowan's father served as pastor. In their adult years, Sapulpa had previously only worked half of a basketball game with Rowan. Rowan asked Sapulpa to work as an announcer on the game at issue, but did not give any advance notice of the game, as Rowan's invitation to Sapulpa to call the game on March 11, 2021, was made on March 11, 2021. Sapulpa, nevertheless, expressed some excitement to Rowan about the opportunity to call a game in his hometown. Although Sapulpa's direct examination did not address the hot mic incident, he testified extensively about the ramifications he endured in the aftermath of the incident. Sapulpa immediately began to receive hate-filled Facebook messages and texts, some of which included death threats. At 1:39, p.m., he received a text message from an unknown telephone number that called him a “racist piece of trash”.¹² The messages continued throughout the day. For example, Sapulpa received text messages stating: “There's no place in life for an ignorant racist fools [sic] who go as far as to calling children, RACIAL SLURS”; “your parents raised a bitch”; “Racist trash. Pls kill urself [sic]”; and “Bitch I'll kill you”.¹³

25 Sapulpa was working as a teacher in Hulbert when the 12:37, p.m., update was published by The Oklahoman on March 12, 2021. When the messages and phone calls started coming in, Sapulpa left school and went to the office of an attorney in Tahlequah. Sapulpa then went to his father's house, where he stayed for a couple of weeks. As the days went on, Sapulpa described feeing high levels of fear, humiliation and embarrassment. Sapulpa attested to losing a considerable amount of weight and also noted that his children felt a significant level of embarrassment.

26 Sapulpa testified that he blames the article on the decision by Hulbert Public Schools not to renew his teaching contract. The Superintendent of the Hulbert Public School, Jolyn Choate, however, disputed that testimony. Following the non-renewal of his teaching contract at Hulbert, Sapulpa remained unemployed until December 21, 2021, when the Pawhuska, Oklahoma school district hired him. He now works in Pawhuska as an After School Program Director as well as the Summer School Program Director. Sapulpa's salary also now equals or exceeds the salary he made while working for Hulbert Public Schools prior to the incident. He further agreed that he hasn't sought medical treatment or any counseling because of the incident and has not taken any medication to deal with the incident.

27 Although the Pullman360 entities had dismissed their claims, Sapulpa spent considerable time in his direct testimony discussing his aspirations for the Pullman360 entities and his fledgling efforts to build a football clinics business through an association with USA Football. The trial court permitted this testimony over Gannett's objection. The Pullman360 enterprise involved construction and marketing of football blocking sleds, several of which were purchased by the University of Oklahoma football program and various high school programs. Both enterprises ceased after publication of the March 12, 2021, article. While both enterprises were personally fulfilling for Sapulpa, there was no evidence of an economic loss suffered by Sapulpa concerning them. The football clinics enterprise had only been in operation for approximately one year as of March, 2021, and had not yet turned a profit. There was, similarly, no evidence introduced regarding Pullman360's business plan or any of its finances.

Defense Witnesses

28 Following the denial by the trial court of the demurrer by Gannett and Sapulpa's motion for directed verdict, Gannett presented five defense witnesses, two of whom were expert witnesses. Dr. James Scott, a professor of psychiatry and behavioral sciences at the University of Oklahoma, testified as an expert in the area of neuroscience and his review of data from a test administered by another professional in May, 2021. His conclusions were that, based on the independently administered tests, Sapulpa was not suffering from depression, anxiety or traumatic stress.

29 The Hulbert Public Schools Superintendent, Jolyn Choate, testified that her office received numerous phone calls and posts on the school's Facebook page on the morning of March 12, 2021. She learned from Hulbert's Athletic Director that “it was reported that Mr. Sapulpa had said the derogatory things that were spoken ․” and she then listened to the embedded clip and said right away, “that's not Scott.” Notwithstanding their knowledge that Sapulpa was not the announcer that made the racist comments, the office phone “had been ringing off the hook and that there were some ugly messages.” She directed that the school's Facebook page be taken down. After speaking with Sapulpa late that afternoon, Choate issued a public statement and activated the school's robocall system in which the following was announced: “[y]ou are likely aware of an incident last night involving one of our school employees ․ That employee has been placed on administrative leave and will not be returning to school. While it has been reported incorrectly that our employee was the announcer who used the racial language, our employee should have stood up for the students and condemned the racist language from the other announcer and the hate and intolerance it represents.” Subsequently, Sapulpa's teaching contract was not renewed, but Choate testified that the nonrenewal was not motivated by the incident. She testified that “his contract was not renewed because I needed the position to hire a football coach ․”. Choate added there was not a position available for him if he did not coach football. Sapulpa was, however, placed on administrative leave on March 12, 2021, and did not return to the school campus for any official duties for the remainder of the school calendar.

30 Matt Rowan was called as a witness by Gannett. Rowan described how he had muted his microphone and that he was surprised to see from the broadcast equipment that Sapulpa had not muted his microphone. Rowan admitted to the jury that he, in fact, said the racist comments and that, to his knowledge, Sapulpa did not say anything while the national anthem played. He acknowledged that Jourdan called him on March 12, 2021, and that he initially misled Jourdan by telling him that he did not know who had made the racist comments. Rowan further described that he issued a press release in the late afternoon on March 12, 2021, writing, in part, that he “made inappropriate and racist comments believing the microphone was off; however, let me state immediately that is no excuse such comments should never have been uttered.”  ¹⁴ This press release resulted in the final update by The Oklahoman on March 12, 2021, at 5:35, p.m., in which the paper reported, in part, that Rowan “told The Oklahoman he was the person who made the racially insensitive remarks․ Rowan apologized Friday and blamed his use of racist language on his blood sugar․ Rowan said Scott Sapulpa, whom The Oklahoman previously reported as having said the remarks, did not make any of the offensive comments.”

31 Kelli Leonard, an internal data analyst professional employed by Gannett, testified concerning the number of views the story received on March 12, 2021. Leonard indicated that the story received approximately 71,000 views off of The Oklahoman's on-line platform. She added that 78% of the views were on a version of the story which did not mention Sapulpa's name. More specifically, The Oklahoman received approximately 16,400 clicks between 12:37, p.m. and 3:05, p.m. Leonard also stated that the number of views from The Oklahoman's online platform on March 12, 2021, was “much higher [than] for any story.” She added that the USA Today network received “about 59,000 clicks during that period.” Data analysis exhibits were admitted by both Sapulpa and Gannett. See Pl. Ex. 220 & Def. Ex. 13. Leonard agreed “that the story can be disseminated ․ [to] more people through social media than what ․ [Gannett] is able to track”

32 Gannett concluded its witness presentation with Joey Senat, Ph.D., a professor of media law and public affairs reporting at Oklahoma State University. He testified Jourdan's reporting was consistent with reasonable journalistic standards. In particular, he added that “[a]n error doesn't necessarily mean that the reporter was negligent or deviated from what we would expect a reporter to do in those circumstances.” He added “I think the original focus was to tell the audience this has happened and that evolved eventually into being able to identify the announcer who made the comments. I think that was the evolution that day of how Cameron [Jourdan] was trying to do that while he was covering the basketball tournament.” He recognized on both direct and cross-examination that Jourdan had only one person inform him that Sapulpa made the racist comments, Matt Cloud, who disputes he was a source on that point. Senat acknowledged that Jourdan was doing too much work that day and should not have been assigned to report on the incident.

33 At the conclusion of a nine-day jury trial, the jury returned verdicts against Gannett, awarding $5 million in compensatory damages and $20 million in punitive damages. This timely appeal followed.

STANDARD OF REVIEW

34 Gannett asserted eleven issues on appeal in Ex. “C” to its Pet.-in-Error, several of which contained multiple subparts. The Br.-in-Chief reformatted and consolidated those issues, reducing the number of argued issues to eight, some with multiple subparts. A summary of the issues argued in the Br.-in-Chief is as follows: (1) the trial court erred in determining Sapulpa was a private figure and that, instead, the trial court should have found him to be a public figure and/or a public official; (2) the evidence did not show “actual malice” clearly and convincingly; (3) the trial court erred in denying Gannett's motion for directed verdict with respect to both the defamation claim and IIED claim; (4) the trial court erred in admitting testimony of Sapulpa's expert witnesses; (5) the trial court's instructions were erroneous or incomplete; (6) the trial court erred in denying Gannett's motion for mistrial; (7) the $5 million in compensatory damages was unsupported by the evidence; and (8) the award of punitive damages was unconstitutional, contrary to Oklahoma law, and not supported by the evidence. Gannett additionally argues that the punitive damages award was the result of sympathy; Category II & III punitive damages were not authorized by the first-stage verdict; and, the trial court fatally erred in allowing Category III damages.

35 A jury verdict is reviewed for “any competent evidence reasonably tending to support [the verdict].” Ellison v. Campbell¸ 2014 OK 15, 14, 326 P.3d 68, 73. Under this deferential standard of review, the appellate court will not disturb the judgment “unless there is an entire absence of proof on a material issue.” Id. The general appellate standard of review concerning actions at law tried to a jury was described in Florafax International, Inc. v. GTE Market Resources, Inc., 1997 OK 7, 3, 933 P.2d 282, as follows: “[i]n an action at law, a jury verdict is conclusive as to all disputed facts and all conflicting statements, and where there is any competent evidence reasonably tending to support the verdict of the jury, this Court will not disturb the jury's verdict or the trial court's judgment based thereon. (citation omitted.)”.

36 Jury instructions are reviewed for a reflection of Oklahoma law and are considered as a whole. Myers v. Missouri Pacific Railroad Co.¸ 2002 OK 60, 29, 52 P.3d 1014, 1029. Under this standard, the reviewing court need not determine whether jury instructions are perfect but only “whether the instructions reflect the Oklahoma law on the relevant issue.” Myers, 2002 OK 60, 29. Where the jury instructions do, indeed, reflect the Oklahoma law, the lower court's judgment will not be disturbed on appeal “absen[t] a miscarriage of justice or a substantial violation of the complaining party's constitutional or statutory rights.” Id.; cf. 20 O.S. § 3001.1.

37 Contrary to jury instructions and verdicts, questions of law are reviewed de novo. K & H Well Service, Inc. v. Tcina, Inc., 2002 OK 62, 9, 51 P.3d 1219, 1223. An “appellate court has plenary, independent [,] and non-deferential authority to reexamine a trial court's legal rulings.” Id.

ANALYSIS

Private Figure

38 Gannett argues that the trial court erred in ruling Sapulpa was a “private figure” rather than a public person (figure or official) for the purpose of his defamation claim. We disagree and find the trial court correctly deemed Sapulpa a “private figure”, thus requiring Sapulpa demonstrate negligence to recover actual damages. Nevertheless, even if Sapulpa had become a “limited- purpose public figure” by virtue of his mere proximity to Rowan's controversial commentary, Sapulpa presented sufficient evidence to satisfy the heightened “actual malice” standard required for “limited-purpose public figure” defamation plaintiffs.

39 In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court preempted state defamation laws by imposing a burden upon defamation plaintiffs ¹⁵ to show that the defamatory statement was made with “actual malice ¹⁶ “ if the plaintiff is a “public official”. Id., at 279-80. Following New York Times, the Supreme Court extended the “actual malice” standard to include both plaintiffs who are “public officials“ and “public figures” (Curtis Pub. Co. v. Butts, 388 U.S. 130, 155 (1967), but declined to extend this heightened burden to all defamation plaintiffs. Gertz v. Robert Welch, Inc., 418 U.S. 323, 343 (1974).

40 In the wake of the U.S. Supreme Court's defamation reformation, the Oklahoma Supreme Court undertook Gertz's directive to articulate a standard of liability for defamation claims made by private individuals, concluding that “a reasonable balance between the right of the news media and the right of the private individual is best achieved by the negligence test.” Martin v. Griffin Television, Inc., 1976 OK 13, 23, 549 P.2d 85(emphasis added). While Gannett relies upon a selection of Oklahoma case law to argue that Sapulpa was a “public official” by virtue of his employment as a public school teacher, we find these cases distinguishable from the underlying circumstances.  ¹⁷ In Johnston v. Corinthian Television Corp., 1978 OK 88, 583 P.2d 1101, the plaintiff sued a media defendant for reporting on purported conduct related to the plaintiff's official role as a schoolteacher, and the Court found that the plaintiff was “operating within the framework of the public school system, an obvious governmental function.” Johnston, at 7.  ¹⁸ Similarly, in Grogan v. KOKH, LLC, 2011 OK CIV APP 34, 256 P.3d 1021, a media defendant reported on a rumor about the plaintiff, also a public school teacher and coach, where students alleged the plaintiff threatened violence while working during a school basketball game. Grogan, at 2. In both Johnston and Grogan, the media defendants reported upon public school employees acting in their official capacity as teachers and/or coaches, and the subject of the alleged defamatory statements involved matters directly related to their conduct as teachers and/or coaches.

41 Although Mr. Sapulpa was, indeed, a public school teacher, he was not acting in his official role as a teacher during the basketball game. Sapulpa was not employed by the school district where the basketball game was hosted (Sapulpa Public Schools), nor was he employed by either of the schools (Norman High School and Midwest City High School) whose teams were playing during the “hot-mic” incident. Rather, Mr. Sapulpa was merely filling a volunteer role that any other non-school employee would be equally qualified to fill. While Gannett alleges in its Reply Brief that “a report that Sapulpa made a racial slur about a high school girls’ basketball team surely touches on Sapulpa's fitness to serve as a public-school teacher and coach”, we find this interpretation would transform all government employees into “public officials” and would extend to the employee's conduct far outside the course and scope of their employment. Gannett's broad interpretation directly contravenes the U.S. Supreme Court's holding that the “public official” status encompasses only those serving in “position[s] in government ha[ving] such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees”. Rosenblatt v. Baer, 383 U.S. at 86 (emphasis added).

42 Gannett further contends Sapulpa qualified as a “limited-purpose public figure” by virtue of his alleged involvement in the “public controversy” surrounding Rowen's racist remarks. We disagree. In determining whether a plaintiff qualifies as a “limited-purpose public figure”, the Tenth Circuit utilizes a two-part test which requires reviewing courts to: (1) isolate the specific public controversy related to the defamatory remarks; and (2) examine the type and extent of the plaintiff's participation in that public controversy to determine whether, under Gertz, he has “thrust [himself] to the forefront of [the] controvers[y] in order to influence the resolution of the issues involved.” World Wide Ass'n of Specialty Programs v. Pure, Inc., 450 F.3d 1132, 1136--37 (10th Cir. 2006) (citing Wayment v. Clear Channel Broadcasting, Inc., 116 P.3d 271, 283 (Utah 2005). The subject of the defamatory remarks in this case was, undoubtedly, a “public controversy”, as it involved a racist and derogatory comment about a group of high school athletes’ silent protest of systemic racism in the United States. See e.g., Dean v. Warren, 12 F.4th 1248, 1251 (11th Cir. 2021) (factual history surrounding athletes’ protest of racial injustice by kneeling during the national anthem). Notwithstanding the apparent public controversy, we are unable to find that the circumstances surrounding this controversy satisfied the second prong in this “limited-purpose public figure” test with regard to Sapulpa's alleged participation in the controversy.

43 While the bulk of Sapulpa's public scrutiny resulted from Gannett falsely attributing Rowan's racist comment to Sapulpa, Gannett contends that, absent its misreporting, Sapulpa's mere proximity to Rowan's racist commentary and his choice to remain silent in response to Rowan's comments were sufficient to “thrust” Sapulpa into the realm of public discourse. In support of this contention, Gannett cites to cases from the First, Third, Fourth, and D.C. Circuit Courts, but our review of these cases lead us to the opposite conclusion. The D.C. Circuit Court held “[t]rivial or tangential participation [in a public controversy] is not enough” to qualify as a “limited-purpose public figure”, explaining further that a defamation plaintiff “must have been purposely trying to influence the outcome or could realistically have been expected, because of his position in the controversy, to have an impact on its resolution.” Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1297 (D.C. Cir. 1980); Accord Lluberes v. Uncommon Prods., LLC, 663 F.3d 6, 14 (1st Cir. 2011). Following Rowan's racist commentary at the game, there is no evidence in the record indicating Sapulpa made any sort of voluntary or otherwise intentional efforts to involve himself in the public controversy. If anything, Sapulpa retreated from the public entirely, testifying that he immediately left the school where he was teaching following The Oklahoman’s 12:37, p.m., update misidentifying Sapulpa, after which Sapulpa testified to, essentially, hiding out at his father's house for several weeks due to the severe public backlash.

44 Gannett's final appeal to Sapulpa's status as a “limited-purpose public figure” includes references to cases involving “involuntary” public figures, a category the U.S. Supreme Court described as “exceedingly rare.” Gertz v. Robert Welch, Inc., 418 U.S. at 345. Gannett argues that, by volunteering to participate in Rowan's broadcast of the high school basketball tournament, Sapulpa “inject[ed] himself into the public sphere for the limited purpose of any controversy arising from the broadcast” notwithstanding his “relatively passive involvement”. See Dameron v. Washington Magazine, Inc., 779 F.2d 736 (D.C. Cir. 1985). In contrast to the plaintiff in Dameron, Sapulpa's role in the “controversy” (the racist commentary) prior to Gannett's misidentification was merely that of a volunteer announcer at a high school basketball game who sat silently after his co-announcer made derogatory comments. Sapulpa was not employed by Rowan's broadcasting company, making his relationship to the racist comments tangential at best. Accordingly, we cannot find Sapulpa engaged in a course of conduct which he could have reasonably expected would have subjected him to such a high degree of public attention. We, therefore, find no error in the trial court's determination that Sapulpa was a private figure, therefore requiring Sapulpa prove Gannett acted negligently to recover actual damages.

45 As Sapulpa was, indeed, a private figure, he was obligated to prove (1) a false and defamatory statement; (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) either the actionability of the statement irrespective of special damage, or the existence of special damage caused by the publication. Mitchell v. Griffin Television, L.L.C., 2002 OK CIV APP 115, 5, 60 P.3d 1058, 1061 (citing Sturgeon v. Retherford Publications, Inc., 1999 OK CIV APP 78, 987 P.2d 1218, 1223). In alleging negligence, Mr. Sapulpa must demonstrate that Gannett failed to exercise “ordinary care”, i.e. “that degree of care which ordinarily prudent persons engaged in the same kind of business usually exercise under similar circumstances”. Martin v. Griffin Television, Inc., 1976 OK 13, 23, 549 P.2d 85, 92. On the other hand, as demonstrated herein, we find that, even if Sapulpa had become a “limited-purpose public figure” by virtue of his mere proximity to Rowan's controversial commentary, Sapulpa presented sufficient evidence to satisfy the heightened “actual malice” standard required for “limited-purpose public figure” defamation plaintiffs.

Evidence of “Actual Malice”

46 Gannett's second argument is that “[t]he evidence did not prove “actual malice” clearly and convincingly.  ¹⁹ This argument is grounded upon the assumption that, as a matter of law, Sapulpa is a public figure/official for purposes of the defamation claim.  ²⁰ As shown by this Opinion, we reject Gannett's argument that Sapulpa is a public figure/official and find no error with respect to the trial court's finding that Sapulpa must be treated as a private person, thereby allowing the case to be tried on a negligence theory. In that context, well-established precedent dictates that a private figure, like Sapulpa, is not obligated to satisfy the constitutional “actual malice” standard that was first announced in New York Times v. Sullivan, 376 U.S. 254 (1964), for purposes of the prima facie elements of a defamation claim.  ²¹ Martin v. Griffin Television, Inc., 1976 OK 13, 20.  ²² See Trice v. Burress, 2006 OK CIV APP 79, 10, 137 P.3d 1253, 1257 (reciting the prima facie elements for a defamation claim pursued by a private figure).

47 “Actual malice” has been described as a term of art, created to provide a convenient shorthand expression for the standard of liability established in New York Times Co. v. Sullivan. See Grogan v. KOKH, LLC, 2011 OK CIV APP 34, 20, 256 P.3d 1021, 1031. In New England Oil & Pipe Line Co. v. Rogers, 1931 OK 692, 7 P.2d 638, the Supreme Court stated, in part, that “[t]he word ‘malice’ seems to have a varied definition or description depending largely upon the connection in which it is used and the nature of the litigation in which it is sought to be established, the subject to which it is applied, etc.” Id., at 13.

48 Save and except for two short phrases in Sapulpa's Answer Brief, Sapulpa does not object to the proposition that “actual malice” was a necessary element to Sapulpa's prima facie case.  ²³ For example, Jury Instruction No. 16 (which appeared prior to the Instruction that defined the elements of the defamation claim), laid out the definition of “actual malice”, as established by New York Times:  ²⁴

Malice “Actual malice” is defined as with knowledge that the publication was false, or with reckless disregard of whether it was false or not. The requirement that Defendant made the statement with reckless disregard of its truth means that the Defendant must have entertained serious doubt as to its truth. “Actual malice” must be proven by clear and convincing evidence.

49 We hold that the following facts establish, if believed, that the decision by Gannett to identify Sapulpa as the “announcer” of the racist comments was made in a hasty and impulsive fashion, thereby showing, clearly and convincingly, that Gannett exhibited reckless disregard as to whether it was false or not:  ²⁵

A. No reporter or editor at The Oklahoman took time to watch the video of the incident that was available on social media prior to 12:37, p.m., on March 12, 2021, which would have easily revealed that Sapulpa was not the person using racist language.

B. Jourdan did not take any notes of his phone conversations with either Matt Cloud or David Jackson.

C. Ryan Sharp (the news director for The Oklahoman) made the decision to publish Sapulpa's name at 12:37, p.m., within just a matter of minutes after his phone call with Jourdan who, from his perspective, had spoken with Matt Cloud a mere eight minutes earlier - at 12:29, p.m. In that context, both Jourdan and Sharp testified about their phone call and both stated that Jourdan told Sharp that he (Jourdan) had two sources. That is the only information in the record to support Gannett's claim that the paper had two sources. Sharp, however, was unable to recall any other details of the call, including whether he interrogated Jourdan in any respect to determine what those two sources allegedly told Jourdan. Ironically, Sharp had, just minutes before his phone call with Jourdan, twice instructed his staff that the paper needed two sources before it could release the name of a person (with those directives having occurred at 12:18, p.m. & 12:28, p.m.). In light of the fast turnaround connected with the decision to publish the 12:37, p.m., update and the scant evidence that Sharp truly was advised that there were, in fact two sources, it is reasonable to conclude either that: the jury did not believe Sharp's testimony and concluded that Gannett did not have two sources to support the 12:37, p.m., update; or, alternatively, that Sharp's admonition about needing two sources was mere “window dressing” and had been disingenuously stated.

D. Senior Editor, Don MeCoy, sent Jourdan a text at 8:13, p.m., on March 12, 2021, in which he wrote, in part, “you did nothing wrong today. You worked your tail off to get the news, and then your editors -- particularly me -- did you a disservice. We got in too much of a hurry in a competitive situation. But it was clear that we were going to eventually know exactly who said those vile things ‘What’ was the big news; not so much the ‘who’․”.

The above facts are set out as merely exemplary of the entire record, which, taken as a whole, demonstrates sufficient evidence, if believed, of “actual malice” (clearly and convincingly) in the context of the New York Times v. Sullivan standard.

Denial of Motions for Directed Verdict

50 Gannett's third argument is that the trial court erred in denying Gannett's motion for directed verdict with respect to both the defamation claim and IIED claim. “We review the denial of a motion for directed verdict de novo.“ Linn v. Oklahoma Farm Bureau Mut. Ins. Co., 2020 OK CIV APP 62, 9, 479 P.3d 1013, 1018. Harder v. F.C. Clinton, Inc., 1997 OK 137, 948 P.2d 298explains that: “[t]he legal standard that governs motions for directed verdict and those for summary judgment is very similar, if not indeed identical. Neither may be sustained unless there is an entire absence of proof on a material issue. Both should be denied when there are questions of material fact or reasonable persons could differ as to the choice of inferences to be drawn from the facts in evidence.” Id. at 6.

51 Gannett initially re-urges its argument regarding “actual malice”, and whether the evidence clearly and convincingly proved that Gannett published a false statement about Sapulpa with “actual malice.”  ²⁶ This argument is presented as a challenge to both the defamation claim and the IIED claim. Based on our analysis of the “actual malice” issue, supra., we find no error in the trial court's denial of Gannett's motion for directed verdict on that issue.

52 Gannett next argues that Sapulpa failed to prove causation. Gannett argues that Sapulpa did not present any proof of loss to his reputation (i.e., that anyone “thought less of” him), that his proof of emotional distress was not legally sufficient, that he did not show recoverable damages (i.e., loss of earnings), and that there was no proof of causation regarding those damages. It is well-settled that, in an “action for libel, recovery is sought primarily for the injury to one's reputation. The focus of the action is on the effect of the publication on what others may think of the person.” Colbert v. World Pub. Co., 1987 OK 116, 7, 747 P.2d 286, 288--89. In Martin v. Griffin Television, Inc. 1976 OK 13, 26, 549 P.85, the Court stated, in part, that “Gertz ․ said actual injury is not limited to out-of-pocket loss. The more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. As a matter of law, we find both elements of damage could be included in actual injury and actual damage to the defamed party, subject, of course, to proof.”  ²⁷

53 Causation is, traditionally, a question of fact for the jury. Lockhart v. Loosen, 1997 OK 103, 11, 943 P.2d 1074, 1079--80, as corrected (Aug. 21, 1997) (“[t]raditionally, causation in a negligence action lies within the realm of fact, not law․ It is only ‘where the evidence together with all inferences which may be properly deduced therefrom is insufficient to show a causal connection between the alleged wrong and the injury’ that the issue of proximate cause becomes a question of law.”). See Robinson v. Oklahoma Nephrology Assocs., Inc., 2007 OK 2, 9, 154 P.3d 1250, 1254 (“[c]ausation becomes a question of law only when there is no evidence and no reasonable inference from the evidence ‘from which the jury could reasonably find a causal link between the negligent act and the injury.’ (citation omitted). Rephrased, the legal question is narrowly focused on whether a reasonable person could believe that the defendant's negligent conduct was a cause of the plaintiff's injury.”).  ²⁸

54 The record demonstrates that reasonable persons could differ as to the facts in evidence as to whether a causal connection existed between the defamatory statements and the injury suffered by Sapulpa, as reflected, in part, by the testimony given by the following witnesses: Ashley Rogers, Bobby Klinck, Matt Hennessey, Bobby Jefferson, Alton Lusk, Anthony McNac, Joe Kaplan, Jolyn Choate, and Sapulpa. When viewed in a light most favorable to Sapulpa, we hold that this was competent to support a jury's finding that Gannett's publication caused Sapulpa's damages and injuries.

55 Gannett also challenges the trial court's denial of the motion for directed verdict concerning the IIED claim. An IIED claim -- also known as the tort of “outrage” -- requires a plaintiff to demonstrate evidence of extreme and outrageous conduct coupled with severe emotional distress. Hicks v. Cent. Oklahoma United Methodist Ret. Facility, Inc., 2017 OK CIV APP 23, 26, 423 P.3d 684, 697 (citing Schovanec v. Archdiocese of Okla. City, 2008 OK 70, 47, 188 P.3d 158). In order to recover damages for an IIED claim, a plaintiff must prove: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the conduct caused the plaintiff emotional distress; and (4) the emotional distress was severe. Durham v. McDonald's Restaurants of Oklahoma, Inc., 2011 OK 45, 4, 256 P.3d 64, 66 (citing Computer Publications, Inc. v. Welton, 2002 OK 50, 7, 49 P.3d 732, 735). “The trial court, in the first instance, must test the evidence as a matter of law and decide whether both outrageous conduct and severe emotional distress may be proved before submitting those issues to the trier of fact for final determination.” Eddy v. Brown, 715 P.2d 74, 76--77 (Okla.1986); Breeden, 575 P.2d at 1377; see Restatement § 46, Comments h and j.” McMullen v. City of Del City, 1996 OK CIV APP 46, 7, 920 P.2d 528, 531; Breeden v. League Servs. Corp., 1978 OK 27, 12, 575 P.2d 1374, 1377. The trial court, in this regard, acts as a “gatekeeper”. See, e.g., Computer Publications, Inc. v. Welton, 2002 OK 50, 8, 49 P.3d 732, 733.

56 Gannett argues that Sapulpa presented no evidence that Gannett's misreporting was “intentional” or “reckless,” contending Jourdan had a reasonable basis for identifying Sapulpa as the party who made the racist statements. We disagree. The standard of intentionality articulated in IIED cases is identical to that of the New York Times “actual malice” standard, as both require a plaintiff demonstrate the defendant acted either “intentionally” or “recklessly”. Jordan v. World Pub. Co., 1994 OK CIV APP 30, 11, 872 P.2d 946, 948 (“the first amendment requires that plaintiff establish at least the same level of intent to recover for the infliction of emotional harm as is necessary to find defamation.”); Martin v. Griffin Television, Inc., 1976 OK 13, 28, 549 P.2d 85, 93 (“ ‘[a]ctual malice’ is defined as ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ ”); Chenoweth v. City of Miami, 2010 OK CIV APP 91, 15, 240 P.3d 1080, 1084 (“a claim for intentional infliction of emotional distress requires proof of some intentional or reckless, extreme and outrageous conduct, equivalent, in our minds, to bad faith.”).

57 Gannett maintains that Jourdan's conduct was not sufficiently severe to permeate the trial court's “gatekeeping” filter. We disagree. An IIED plaintiff must provide evidence that the defendant's conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Breeden v. League Servs. Corp., 1978 OK 27, 15, 575 P.2d 1374, 1378. Put more simply, “a plaintiff must prove that the recitation of defendant's conduct to an average member of the community would arouse the listener's resentment against the defendant and would lead the listener to exclaim ‘Outrageous!’ ” Computer Publications, Inc. v. Welton, 2002 OK 50, 9, 49 P.3d 732, 735. The circumstances surrounding the defendant's conduct also affect whether the conduct is reasonable. Eddy v. Brown, 1986 OK 3, 7, 715 P.2d 74. Nevertheless, IIED liability does not extend “to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities,” as recovery for an IIED claim -- like defamation -- must strike an appropriate balance between the plaintiff's right to recover damages for severe emotional harm and the defendant's First Amendment rights. Eddy v. Brown, 1986 OK at 7, 715 P.2d at 77 (citing Restatement (Second) of Torts, Ch. 2, § 46, comment d [1977]); See also, Jordan v. World Pub. Co., 1994 OK CIV APP 30, 11, 872 P.2d 946, 948.

58 Based upon our review of the appellate record, we find that Sapulpa presented sufficient evidence, if believed, would cause a reasonable person in the community to find Gannett's conduct was “reckless, “extreme” and “outrageous”. In addition to the brief summary of evidence in 49, supra., the “extreme” nature of Gannett's conduct is demonstrated by the following additional evidence in the record:

A. While Jourdan was working on the story of the racist comments, Gannett continued Jourdan's simultaneous assignment to cover the on-going quarterfinals of the girl's state basketball tournament, arguably showing that Gannett did not devote sufficient resources to coverage of the admittedly “fast-moving” story. The simultaneous assignment to Jourdan of both stories also arguably revealed Gannett's failure to appreciate, in real-time, the significance of the story because, as Mr. Rivera testified, the incident was not only a sports story, but also dealt with the larger context of racism in Oklahoma. Consequently, as Professor Kaplan testified, the error in wrongly identifying Sapulpa as the source of the racist comments diminished the important value of the story.

B. The Oklahoman also shared the story to the USA Today network (a sister company within the Gannett media family), on March 11, 2021, after which time the story, as described by Eric Rose, “went viral”. Although the actual number of views was a point of disagreement at trial, Gannett's witness, Kelli Leonard, agreed that, after Gannett shared the story with the USA Today Network, the story received a “significant” number of views.

C. When Jourdan was asked at trial if he believed the story was properly sourced, he answered “I do”. This position by Jourdan arguably revealed a hubristic attitude and that he did not appreciate the terrible reputational injury that he could possibly cause, his reliance on the brief telephonic interview with Matt Cloud, the rapid pace at which he was working, and that he did not take notes of any conversations that day.

59 Gannett also challenges the IIED verdict by arguing Sapulpa failed to prove any emotional harm and that the evidence showed that Sapulpa suffered no economic loss (for purposes of both claims). The record contains substantial evidence of both emotional harm and economic loss based on the trial testimony of various witnesses, including Bobby Klinck, Matt Hennessey, Bobby Jefferson, Jolyn Choate, Stan Smith, and Sapulpa. The trial court did not, therefore, err in denying the motion for directed verdict.

Expert Testimony

60 Gannett argues that the trial court erroneously permitted Sapulpa to offer expert testimony by Stan Smith (economic damages), Eric Rose (cost to repair reputational harm), and Joe Kaplan (journalistic standard of care), arguing that their testimony was irrelevant and unreliable.  ²⁹ While Gannett does not challenge the qualifications of these experts, it objects to their methodologies and as to the relevance of some aspects of their testimony. It is well-established that the trial court stands as a “gatekeeper,” admitting or excluding evidence based on the judge's assessment of its relevance and reliability. Myers v. Missouri Pac. R. Co., 2002 OK 60, 36, 52 P.3d 1014. In reviewing a decision on the admissibility of expert testimony, we apply the clear abuse of discretion standard. In Christian v. Gray, 2003 OK 10, 43, 65 P.3d 591, the Court stated, in part, that “a judgment will not be reversed based on a trial judge's ruling to admit or exclude evidence absent a clear abuse of discretion.” Id., at 43.

61 The factors ³⁰ outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593--594 (1993), were intended to be flexible and not intended to be a rigid standard applicable to every case. Christian v. Gray, 2003 OK 10, 8, 65 P.3d 591, 598, as corrected (Feb. 24, 2003) (“[t]he inquiry is a flexible one, and focuses on the evidentiary relevance and reliability underlying the proposed submission, and not on the conclusions they generate.”). Moreover, the grounds for an expert's opinion do not have to be perfect. See Hoog v. Dometic Corp., No. CIV-20-00272-JD, 2024 WL 1234951, at *8 (W.D. Okla. Mar. 22, 2024) (“to establish an expert's testimony as reliable, the proponent need not prove the expert is indisputably correct; rather, the party must show the method employed by the expert in reaching his conclusion is sound and the opinion is based on facts which sufficiently satisfy Rule 702's reliability requirements.”). It is, therefore, not sufficient to exclude an expert even if the judge thinks that there are better grounds for some alternative conclusion, and even if the judge thinks that a scientist's methodology has some flaws such that if they had been corrected, the scientist would have reached a different result. See Nelson v. Enid Med. Assocs., Inc., 2016 OK 69, ‘s 31 & 36, 376 P.3d 212, 222 (“[g]enerally, a trial court ‘should focus on the experts’ methodology rather than the conclusions that they generate.’ (citation omitted)․ While a court must assess science and not merely witness qualifications, it ‘need not weigh or choose between two legitimate but conflicting scientific views.’ ” (citation omitted).).

62 Although Gannett's challenges to both the methodologies and the relevance of some of the testimony by Sapulpa's three experts is not without some merit, the methodologies upon which the experts relied were not so flawed as to render the trial court's pre-trial Daubert rulings and the trial court's from-the-bench rulings an abuse of discretion. More specifically, we agree that Smith's testimony as to the cause of Sapulpa's job loss at Hulbert should be viewed as speculative. On the other hand, the speculative nature of that aspect of Smith's testimony could be viewed as harmless when viewed in the context of the testimony by defense witness Jolyn Choate, the Superintendent at Hulbert Public Schools, because she acknowledged that Sapulpa was placed on administrative leave on March 12, 2021, and that he did not return to the school campus for any official duties for the remainder of the school calendar. Thus, it would be reasonable for the jury to have determined that Sapulpa's job loss was, in part, the result of the actions of Gannett. We reject Gannett's objection to the relevance of Smith's testimony. Similarly, while Gannett accurately argues that Rose (1) did not know Sapulpa's reputation prior to March 11, 2021; (2) that he relied on the questionable premise that reputation can be repaired through a positive advertising campaign; and (3) that Sapulpa had not actually expended any out-of-pocket expenses to have his reputation repaired, the foundational point of Rose's testimony was two-fold: i.e., that Sapulpa had suffered reputational harm and also that Sapulpa would benefit from a social media program aimed at repairing his reputational injury. We, therefore, view Gannett's objections to Rose's testimony to the issue of weight and not as to the admissibility. Consequently, we reject Gannett's objection to the relevance of Rose's testimony. Lastly, although Kaplan's testimony could be described as combative at times (which is easily gleaned from the transcript) and that his testimony with respect to state of mind (to the effect that Gannett knew what it was writing was false) was speculative, Kaplan's standard of care testimony was abundantly relevant, and we reject any objection Gannett may have to the relevance thereof. As with the other two experts, our view is that Gannett's objections to Kaplan's testimony are as to the issue of weight and not as to the admissibility. Thus, we do not find the trial court's rulings with respect to Sapulpa's three experts to be so flawed as to represent an abuse of discretion.

Jury Instructions

63 Gannett argues that some of the jury instructions were either erroneous or incomplete. Jury instructions are “explanations of the law of a case enabling a jury to better understand its duty and to arrive at a correct conclusion. It is the trial court's duty to instruct on the fundamental issues of a case.” Smicklas v. Spitz, 1992 OK 145, 11, 846 P.2d 362, 367. Appellate court review of jury instructions is governed by 20 O.S. § 3001.1:

No judgment shall be set aside or new trial granted by any appellate court of this state in any case ․ on the ground of misdirection of the jury or for error in any matter of pleading or procedure, unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.

(emphasis added). In Cimarron Feeders, Inc. v. Tri-County Elec. Coop., Inc., 1991 OK 104, 818 P.2d 901, the Supreme Court stated, in part, that:

When reviewing jury instructions, the standard of review considers the accuracy of the statement of law, the applicability of the instructions to the issues when the instructions are considered as a whole, and above all, whether the probability arose that jurors were misled and reached a different conclusion due to an error in the instruction. Because the facts are in dispute, the jury instructions are especially important so the trier of fact has an accurate understanding of the applicable law and can apply that law to the facts it finds the evidence supports

Id., at 6 (emphasis added). See Myers v. Missouri Pac. R. Co., 2002 OK 60, 29, 52 P.3d 1014, 1029 (“[w]e inquire on review whether the instructions reflect the Oklahoma law on the relevant issue, not whether the instructions were perfect.”); Bouziden v. Alfalfa Elec. Co-op., Inc., 2000 OK 50, 35, 16 P.3d 450, 460 (“[t]he standard of review of a challenged instruction is whether there is a probability that the jurors were misled and thereby reached a different result than they would have reached but for the error.”).

64 Gannett first argues that the trial court erred in failing to give Gannett's requested “pre-instructions” (identified as Gannett's Proposed Instructions Nos. 1-22). While the Oklahoma Uniform Jury Instructions permit certain Cautionary Instructions at the beginning of a trial, no Oklahoma authority endorses the practice of giving substantive instructions at the beginning of a trial. See OUJI, Instructions, Chp. 1.  ³¹ The Cautionary Instructions generally only address the jurors’ basic functions, duties, conduct and various housekeeping matters. Moreover, 12 O.S. § 577, sets out an order for jury trials. Section 577(6), provides, in part, that “[w]hen the evidence is concluded ․ instructions shall be ․ delivered by the court.” Section 577(7), provides, in part, that “[a]fter the instructions have been given to the jury, the cause may be argued.”.

65 Gannett's requested “pre-instructions” Nos. 11-22 went far beyond simply requesting that the trial court instruct the jury concerning their basic functions, duties, conduct and various housekeeping matters. While Gannett's Requested “pre-instructions” Nos. 1-10 were verbatim or modified versions of various OUJI Cautionary Instructions, its “pre-instructions” Nos. 11-22, were substantive in nature: No. 11 (balancing of competing values); No. 12 (elements of defamation -- private figure); No. 12A (elements of defamation -- public figure); No. 13 (defamation measure of damages); No. 14 (elements of IIED); No. 14A (elements of IIED); No. 15 (actual damages -- emotional distress); No. 16 (mitigation of damages); No. 17 (burden of proof -- preponderance); No. 18 (burden of proof -- clear and convincing); No. 19 (no speculation); No. 20 (credibility of witnesses); No. 21 (expert witnesses); and No. 22 (conclusion). In short, under our required standard of review, there is no basis to find error on the part of the trial court in its refusal to deliver any of Gannett's requested “pre-instructions”.

66 Gannett argues that Instruction No. 16 erroneously defined the meaning of “actual malice”, contending that it only contained a “meager outline of the meaning of the term and phrase “reckless disregard”. We observe that one of the challenges with Instruction No. 16 is its incongruity with Instruction No. 17. As we reflected in note 24, supra., Instruction No. 17, laid out the elements of the defamation claim which did not require a finding of “actual malice” and was based on the trial court's ruling to treat Sapulpa as a private person. On the other hand, Instruction No. 16 inserted the subjective element of “reckless disregard of whether it was false or not ․ [and] that the Defendant must have entertained serious doubt as to its truth.” It appears to this Court that, by giving Instruction No. 16, the trial court instructed the jury on the New York Times v. Sullivan, supra., subjective definition of “actual malice”. This is confirmed by the citation in Instruction No. 16 to Miskovsky v. Oklahoma Pub. Co., 1982 OK 8, 12, 654 P.2d 587, 590--91 (where the Supreme Court described the “New York Times standard” as requiring proof, in public figure defamation cases, “[t]hat the defamatory falsehood was made with ‘actual malice’-- made with knowledge that it was false, with reckless disregard of whether it was false or not.”). Notwithstanding the possible incongruity between Instructions Nos. 16 and 17 ³² , Gannett argues that Instruction No. 16 contained only a “bare-bones” definition of recklessness, and that the jury, instead, should have been instructed more thoroughly with the phrase “knowledge or awareness of falsity”, as set out in its Requested Instruction No. 40.  ³³ We agree that, based on the fact that Sapulpa was properly treated as a private figure by the trial court, Instruction No. 16 could have been more precisely or artfully drafted. However, despite our concerns with Instruction No. 16, we reject the challenge to Instruction No. 16 based on the fact that Gannett has not shown that there is a probability that the jurors were misled and thereby reached a different result than they would have reached but for the error. See e.g., Bouziden v. Alfalfa Elec. Co-op., Inc., supra.

67 Gannett only challenged the second Instruction No. 30 (entitled “Exemplary Or Punitive Damages -- First Stage) on the limited basis that it “did not require the plaintiff to prove ‘actual malice’ in order to award punitive damages.” In this limited context, we find no error with the second Instruction No. 30. The second Instruction No. 30 set out the Constitutional “actual malice” standard for the defamation claim and, on page two, defined “malice” for purposes of the IIED claim as “either hatred, spite, or ill-will, or else the doing of a wrongful act intentionally without just cause or excuse.” We find that the accurate definition of common law malice on page two of the Instruction, which was consistent with Gowens v. Barstow, 2015 OK 85, 20, 364 P.3d 644, 652, did not cause any possible jury confusion. See Matter of K. H., 2021 OK 33, 48, 507 P.3d 647, 658 (where the Supreme Court reversed a jury verdict, in part, because of “[c]onfusion and irreconcilable contradiction” with a jury instruction); Burns v. Combites, 2020 OK CIV APP 11, 26, 471 P.3d 87, 91 (“an instruction susceptible of two constructions is erroneous because it has tendency to confuse and mislead the jury.”). This precise issue did not cause a substantial violation of Gannett's statutory rights. See 20 O.S. § 3001.1.

68 Gannett objects to the trial court's refusal to give Gannett's Requested Jury Instructions Nos. 41, 42, and 43, generally stating that the following are not evidence of knowledge or awareness of falsity: “a reporter's reliance on a single source”, “failure to contact or interview the plaintiff prior to publication”, and a reasonably prompt publication of accurate information or a correction. We find no error in the trial court's refusal to give these non-OUJI instructions because Gannett cited no Oklahoma authority to support its request for these instructions. See Farris v. Masquelier, 2022 OK 91, 21, 524 P.3d 942, 951 (“[t]he instructions need not be ideal, but they must reflect Oklahoma law regarding the subject at issue.”).

69 Gannett also challenges Instructions Nos. 24 and 25, concerning the elements of the IIED claim. Instructions Nos. 24 and 25, which set out the relevant elements of an IIED, are consistent with OUJI's 20.1 and 20.2. We find no error in the statements of the applicable law in these instructions. See Thomas v. Gilliam, 1989 OK 59, 9, 774 P.2d 462, 466 (“[f]ailure to use the uniform instruction is error unless the court finds an instruction to be erroneous or otherwise improper, and so states its reasons for not using the OUJI into the record.”).

70 Gannett argues in footnote 29 of its Br.-in-Chief that Instruction No. 18, addressing “Libel per se”, was flawed because “it [in effect] said that truthful information was actionable, and that reporting someone had used racist language was defamatory.” Instruction No. 18 was harmless, at best, because Gannett did not argue in the jury instruction conference that its erroneous report regarding Sapulpa was not defamatory. This is demonstrated by the fact that Gannett conceded during the jury instruction conference that Sapulpa did not “have to prove ․” special damages, thereby arguably eliminating any “reason to instruct the ․ jury about defamation per se.” Although we agree that Instruction No. 18 was unnecessary (in light of Gannett's concession on the issue of special damages), it was not prejudicial to Gannett and does not provide a basis to set aside the verdict here. See Smith v. Barker, 2017 OK CIV APP 69, 25, 419 P.3d 327, 332 (“[w]e may not set aside a verdict for misdirection of the jury unless the error has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”); 20 O.S. § 3001.1.

71 Gannett argues that the trial court erred in refusing its proposed Instruction No. 37 on the basis that “Sapulpa argued he suffered damages to his company [Pullman360] even though the company had dismissed it[s] claims and Sapulpa presented no evidence ․ [of] damage to the LLC.” We find no error in the refusal to give Gannett's proposed Instruction No. 37 in light of the overall description of damages that the jury could award in Instruction Nos. 19 (Defamation - - Measure of Damages) and 20 (Actual Damages -- Emotional Distress). See Missouri-Kansas-Texas R. Co. v. Harper, 1970 OK 77, 13, 468 P.2d 1014, 1019 (“[w]hile [the requested ․ instruction might have gone into more detail in describing the standard of care that those approaching a crossing in an automobile must use to avoid colliding with a train at the crossing, we think that, in a general way, it set forth the standard properly applicable to the present case.”); Brown v. Muldrow Pub. Sch., 2024 OK CIV APP 20, 16, 557 P.3d 1063, 1071 (instructions are to be considered on appeal as a whole).

72 Lastly, Gannett argues that it was error for the trial court to give multiple Jury Instructions on the issue of whether an employee's knowledge is imputed to his employer, as well as the trial court's corresponding refusal to give Gannett's requested Jury Instruction No. 40 (addressing the alleged duty for the constitutional malice standard of “knowledge or awareness of falsity ․ [to] be brought home to the persons in [Gannett's] organization having responsibility for the [decision to publish the Article].”). Gannett relies on the following language in New York Times Co. v. Sullivan, 376 U.S. 254 (1964): “[t]he mere presence of the stories in the files does not, of course, establish that the Times ‘knew’ the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times’ organization having responsibility for the publication of the advertisement ․” In this context, the jury received Instruction Nos. 16, 16a, and 17, which set out the elements for the claim of defamation and included the definition of “actual malice”. Subpart 5 of Instruction No. 17 read as follows: “Defendant did not exercise the care which reasonably careful journalists and/or editors would use under the circumstances to determine whether the statements of fact were true or false ․”. Here, there was clearly evidence before the jury on which, if believed, they could have reasonably relied upon to conclude that Ryan Sharp, the news director who made the decision to publish the 12:37, p.m., update, exercised reckless disregard of whether that update was false or not based on the conflicting testimony of Sharp and Jourdan (as to whether Jourdan had 2 sources). Consequently, the jury could have believed that Sharp's “state of mind” satisfied the constitutional actual malice standard. Considered as a whole under the applicable standard of review, we, therefore, find no error in the refusal by the trial court to give Gannett's requested Instruction No. 40. See Cimarron Feeders, Inc. v. Tri-Cnty. Elec. Coop., Inc., 1991 OK 104, 6, 818 P.2d 901, 902.

Motion for Mistrial

73 Gannett requested a mistrial when it learned that the Verdict Form contained language that the Parties had agreed to remove during the jury instruction conference. The opening line of the Verdict Form read, in part, as follows: “[w]e the jury, empaneled and sworn ․ do, upon our oaths, find in favor of the Plaintiff, Scott Sapulpa, as follows: ․”. The Parties do not dispute that they had agreed to remove the phrase “in favor of the Plaintiff, Scott Sapulpa.” Beyond the inclusion of this phrase, Gannett did not raise any additional allegations of error pertaining to the Verdict Form. Following the opening line at issue, the Verdict Form gave the jury options, on each claim, to find either in favor of Sapulpa or Gannett, and included further interrogatories regarding the amount of damages and the first stage of the punitive damages issue. We find the misstatement in the opening line of the Verdict Form did not represent “a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” See 20 O.S. § 3001.1.

Compensatory Damages

74 Gannett argues that the $5 million award for compensatory damages was unsupported by the evidence. The measure of damages for actual/compensatory damages is the amount which will compensate for all detriment proximately caused by the tortfeasor. See 23 O.S. § 61;  ³⁴ see also Chicago, Rock Island & Pacific Railroad v. Wright, 1954 OK 312, 31, 278 P.2d 830, 836. Actual damages are the whole loss occasioned by the commission of a tort. Lee v. Bueno, 2016 OK 97, 42, 381 P.3d 736, 750. In defamation actions, a plaintiff may recover actual damages for loss of profits as well as “impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.” Martin v. Griffin Television, Inc., 1976 OK 13, 26, 549 P.2d 85, 93. In that context, a jury maintains broad discretion to award damages. Estrada v. Port City Props., Inc., 2011 OK 30, 35, 258 P.3d 495, 508 (“[w]here the amount of the verdict is within the limits of the evidence, we will not invade the jury's province and substitute our judgment as a fact-finding tribunal.”). See Nye v. BNSF Ry. Co., 2018 OK 51, 49, 428 P.3d 863, 878 (“[t]he issue of damages is left to the jury after hearing all the evidence.”).

75 Although the award of $5 million for compensatory damages was a substantial award, there is no factual indication or evidence in the record that shows or suggests that the jury reached that sum through passion or prejudice. See Dodson v. Henderson Props., Inc., 1985 OK 71, 6, 708 P.2d 1064, 1066 (“[b]efore a jury verdict can be set aside as excessive, it must strike mankind, at first blush, as being beyond all measure unreasonable and show the jury to have been activated by passion, partiality, prejudice or corruption.”); Hicks v. Cent. Oklahoma United Methodist Ret. Facility, Inc., 2017 OK CIV APP 23, 32, 423 P.3d 684, 699 (“[w]e will not set aside a judgment unless the record demonstrates the trial court was ‘actuated by passion, partiality or prejudice.’ (citation omitted).”).

76 Gannett argues that, because Sapulpa allegedly suffered no job loss or other economic harm, Sapulpa's damages must be limited to “reputational or emotional harm”. As reflected supra., we disagree with the presupposition of Gannett's argument because of the previously referenced testimony of defense witness Jolyn Choate, the Superintendent at Hulbert Public Schools. Gannett also asserts that Sapulpa failed to prove a loss of reputation due to the mistaken publication of his name. Gannett extrapolates that, without a loss of reputation, Sapulpa may not seek damages for emotional distress in a defamation action. In addition, Gannett claims that Sapulpa did not prove his claim for intentional infliction of emotional distress and, therefore, he may not recover damages on that claim. We reject these contentions in light of the fact that several witnesses testified that Sapulpa's standing in the community was harmed as a result of the action taken by The Oklahoman (i.e., Bobby Klinck, Matt Hennessey, Bobby Jefferson, Jolyn Choate, Stan Smith, and Sapulpa).

77 We also reject Gannett's argument that compensatory damages should be limited to $50,000 as the maximum reasonable amount of damages for mental anguish when freedom of speech is implicated. The cases relied upon by Gannett in support of its argument do not include any authority that is considered precedent in Oklahoma.  ³⁵

78 Finally, Gannett suggests in footnote 30 of its Br.-in-Chief that the size of the verdict may have been attributed to the fact “the institutional press ․ is often unpopular ․[,] whose job includes speaking ill of total strangers ․” (citation omitted). We find, however, that in light of our complete review of the record, the $5 million compensatory award was not beyond all measure unreasonable and that the evidentiary record does not show the jury to have been activated by passion, partiality, prejudice or corruption. See Dodson v. Henderson Props., Inc., 1985 OK 71, 6, 708 P.2d 1064, 1066. We, therefore, affirm the award of actual damages in the amount of $5 million.

Punitive Damages

79 Gannett challenges the $20 million award for punitive damages, in part, upon the basic argument that “its size should shock the conscience of the court.” Gannett more specifically argues that the punitive damages award was the result of sympathy or prejudice, that Category II & III punitive damages were not authorized by the first-stage verdict, and that the trial court fatally erred by lifting the cap on punitive damages. Having reviewed the entire record, in light of the factors set out in 23 O.S. § 9.1(A), our judgment is that the trial court erred in lifting the cap on punitive damages, that the evidence did not show that Gannett acted “intentionally and with malice” for purpose of Category II & III punitive damages, and that the punitive damages award was grossly excessive. The proper remedy is a remittitur for all punitive damages in excess of $2.5 million.

80 The purpose of punitive damages is to punish the offender and to deter similar conduct in the future. Thiry v. Armstrong World Industries, 1983 OK 28, 11-13, 661 P.2d 515, 517. Punitive damages are allowed in Oklahoma by statute under 23 O.S. § 9.1, and three categories of damages may be awarded. See 23 O.S. § 9.1(B), (C), and (D).  ³⁶

81 Category I punitive damages may be awarded if the jury finds by clear and convincing evidence that the defendant acted in reckless disregard for the rights of others. See 23 O.S. § 9.1B. This standard has been described in Oklahoma as an awareness of, or culpable indifference to, an unnecessary risk of injury. Thiry, 1983 OK 28, 26. Reckless disregard is distinguishable from acts that clearly show malice. Gowens v. Barstow, 2015 OK 85, ‘s 20-21, 364 P.3d 644, 652; OUJI No. 5.6.  ³⁷ “Acts performed with ‘reckless disregard’ do not automatically rise to a level constituting malice or bad faith. That is not to say that malice or bad faith can never be inferred from conduct exhibiting reckless disregard for the rights of others. Such determination, however, shall be made on a case-by-case basis.” Id., at 21. Malice, in the context of a punitive damages award in Oklahoma, involves “either hatred, spite, or ill-will, or else the doing of a wrongful act intentionally without just cause or excuse.” Id., at 20; OUJI No. 5.6. Malice also is distinguishable from reckless disregard under 23 O.S. § 9.1, because the statute provides lesser damages for acts of reckless disregard than acts that are done intentionally and with malice. Id.; 23 O.S. § 9.1. We find that the standard of proof for New York Times v. Sullivan “actual malice” is synonymous with the standard of proof for Category I punitive damages under 23 O.S. § 9.1(B)(1). In light of the similar wording of the definition of “actual malice” (under New York Times v. Sullivan)  ³⁸ and the language of § 9.1(B)(1), a finding of liability on a defamation claim (where New York Times v. Sullivan “actual malice” is required), when accompanied by an award of any actual damages, will, as a matter of law, authorize an award of punitive damages within the range established by Category I in the State of Oklahoma.  ³⁹ In this case, the punitive damages interrogatory on the Verdict Form for the defamation claim read as follows:

We: ___ do, ___ do not: find by clear and convincing evidence that Defendant acted with ‘actual malice’ as defined under law.

The Jury Foreperson placed a check next to the word “do”, signifying an affirmative vote on the above-quoted Verdict Form interrogatory. Consequently, because the definition of the phrase “actual malice” in Instruction No. 16 was consistent with New York Times v. Sullivan, the jury here, as a matter of law, only voted to award Category I punitive damages. In other words, the actual wording of the above-quoted Verdict Form interrogatory limited the amount of punitive damages, as a matter of law, to the limit established for Category I punitive damages in § 9.1(B)(2).

82 With respect to the IIED clam, we find that punitive damages were not appropriate as a matter of law because of the substantial error in the language of the Verdict Form. The second page of the Verdict Form included a punitive damages interrogatory on the IIED claim that improperly read as follows:

We: ___ do, ___ do not: find by clear and convincing evidence that Defendant acted intentionally AND/OR with malice towards others.

As with the defamation claim, the Jury Foreperson placed a check next the word “do”, signifying an affirmative vote on the interrogatory. The error with the above-quoted Verdict Form language is its use of the “conjunctive -- disjunctive” phrase, “and/or”. In contrast, the second page of the second Instruction No. 30, that provided various definitions with respect to ability of the jury to award punitive damages on the respective claims, did not use the “conjunctive -- disjunctive” phrase, “and/or”. Because § 9.1 (D) & (C) does not include the ambiguous “and/or”, the portion of the Verdict Form that addresses the IIED claim was, on its face, inconsistent with the language of 23 O.S. § 9.1(C) & (D). Subsections 9.1(C) & (D) allow a jury to award Category II or III punitive damages if the jury finds that “[t]he defendant has acted intentionally and with malice towards others.” In our view, the accurate definition of common law malice on page two of the second Instruction No. 30 did not cure the likely jury confusion. See Matter of K. H., 2021 OK 33, 48, 507 P.3d 647, 658 (where the Supreme Court reversed a jury verdict, in part, because of “[c]onfusion and irreconcilable contradiction” with a jury instruction); Burns v. Combites, 2020 OK CIV APP 11, 26, 471 P.3d 87, 91 (“an instruction susceptible of two constructions is erroneous because it has tendency to confuse and mislead the jury.”). The use of the “conjunctive -- disjunctive” phrase, “and/or” lessened or eliminated the requirement that the plaintiff prove malice to recover Category II or III punitive damages for the IIED claim, and, thus, was reversible error. This error represented a substantial violation of Gannett's statutory rights. See 20 O.S. § 3001.1 & 23 O.S. § 9.1(B)(2) (“[a]ny award of punitive damages under this subsection awarded in any manner other than as required in this subsection shall be void and reversible error.”). Moreover, because the Verdict Form did not include a Category I punitive damages interrogatory (i.e., for “reckless disregard for the rights of others”), remittitur would not be proper to effectively reduce the amount of punitive damages concerning the IIED claim within the allowable range for Category I punitive damages. See 23 O.S. § 9.1(B)(2)(b).

83 We also address the additional challenges argued by Gannett to the punitive damages award. Category II & III punitive damages may only be awarded if the jury finds by clear and convincing evidence that the defendant acted intentionally and with malice towards others (with an additionally required finding by the trial court for Category III punitive damages). See 23 O.S. § 9.1(C) & (D). On this issue, Gannett argues that Category II & III punitive damages were not authorized by the first-stage verdict. See 23 O.S. § 9.1(C)(1) and (D)(1). We agree. Although we have previously stated herein that the facts in the appellate record, if believed, establish that Gannett exhibited reckless disregard as to whether its report was false or not, for purposes of New York Times v. Sullivan, we do not find such evidence demonstrated that Gannett “acted intentionally and with malice” for purposes of punitive damages under Categories II & III. We specifically find that the evidence did not show that Gannett acted “intentionally and with malice” for purposes of Category II & III punitive damages.

84 Moreover, Category III punitive damages, if properly authorized, are not limited by a cap (as are established for Categories I & II). To authorize Category III punitive damages, the trial court must find, “on the record and out of the presence of the jury, that there is evidence beyond a reasonable doubt that the defendant ․ acted intentionally and with malice and engaged in conduct life threatening to humans.” See 23 O.S. 9.1(D)(2). We find that the trial court erred by lifting the cap and allowing Category III punitive damages. In short, because the evidence failed to demonstrate “malice” for purposes of Category II & III punitive damages, the evidence certainly did not meet the beyond a reasonable doubt standard of proof. See 23, § 9.1(D)(2). To knowledge of this Court, a review of Category III punitive damages is an issue of first impression in Oklahoma. As a matter of first impression, we determine that the “gatekeeping” function of the trial court under § 9.1 (D)(2) is an issue of law which we review de novo. See Computer Publications, Inc. v. Welton, 2002 OK 50, 6, 49 P.3d 732, 735 (where the Court noted that, on appeal, the denial of a motion for directed verdict will be reviewed de novo.). We next find that the plain meaning ⁴⁰ of the phrase “conduct life-threatening to humans”, as used in § 9.1(D)(2), by its reference to “humans”, requires conduct that possesses potential harm to more than one person, such as what might arise in the context of alleged injuries to multiple potential victims. In this case, we find that this element was not satisfied here. The only evidence that hinted at this standard of proof was that Sapulpa received hate-filled social media messages and texts (some of which included death threats) and that Sapulpa's children felt a significant level of embarrassment. In our view, the evidence did not satisfy the Category III evidentiary standard. None of the relevant factual disputes at issue in this case -- including the social media messages and negative texts -- satisfied the “beyond a reasonable doubt” standard, as required by § 9.1(D)(2). See Williams v. State, 1977 OK CR 314, 8 (“[w]e have stated numerous times that “reasonable doubt” is self-explanatory, and that therefore definitions thereof do not clarify the meaning of the phrase, but rather tend to confuse the jury.”); Al--Mosawi v. State, 1996 OK CR 59, 27 (finding that Oklahoma law does not permit jury instructions on the meaning of “reasonable doubt”.). Consequently, based on our judgment, any award of Category III punitive damages must be set aside because the trial court erred in its “gatekeeping” function under § 9.1(D)(2).

85 While we have set aside the award of Category III punitive damages, our review is not complete. The view of this Court is that, rather than vacate the entire award of punitive damages, the proper remedy is to apply the principles of remittitur and reduce the punitive damages award to $2.5 million. The Oklahoma Supreme Court has directed remittitur in cases where a jury verdict is grossly excessive or the result of the jury's passion, prejudice or improper sympathy and the award is so out of proportion as to be unconscionable. See Timmons v. Royal Globe Ins., Co., 1982 OK 97, 44, 653 P.2d 907; Leflore v. Reflections of Tulsa, Inc., 1985 OK 72, 708 P.2d 1068; Chandler v. Denton, 1987 OK 38, 741 P.2d 855; and Buzzard v. Farmers Ins. Co., Inc., 1991 OK 127, 824 P.2d 1105.  ⁴¹ However, a “punitive damages verdict lies peculiarly within the province of the jury and it will not be casually interfered with on appeal when it is claimed to have been actuated by passion or prejudice.” Chandler, supra., at 29. Appellate courts generally are not permitted to place a limitation on the amount of a jury verdict unless “the verdict is so excessive as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous ․ ” Currens v. Hampton, 1997 OK 58, 10, 939 P.2d 1138, 1141. Prior to reducing the amount of a jury verdict, an appellate court also must “consider the evidence most favorable to the plaintiffs as establishing the facts concerning the excessiveness of the verdict.” Id.

86 The Due Process Clause also prohibits awards of punitive damages which are “grossly excessive” in relation to a state's legitimate interests in punishment and deterrence. Gilbert v. Security Finance Corp of Oklahoma, Inc., supra., at 30. A verdict for punitive damages will be reduced on appeal if the amount of the award is due to “an improper sympathetic response ․ larger than reason dictates to be necessary to deter such conduct ․”. Timmons v. Royal Globe Ins. Co., supra. at 44; See Oklahoma Transp. Co. v. Martin, 1939 OK 263, 15, 91 P.2d 74, 76; State Farm Life Ins. Co. v. Barbe, 1940 OK 161, ‘s 2 & 3, 100 P.2d 866, 867; St. Louis-San Francisco Railway Company v. Kilgore, 1961 OK 261, ‘s 14 & 15, 366 P.2d 936, 941; Leflore v. Reflections of Tulsa, Inc., 1985 OK 72, 44, 708 P.2d 1068, 1078; Chandler v. Denton, 1987 OK 38, 29, 741 P.2d 855, 868; Buzzard v. Farmers Ins. Co., Inc., 1991 OK 127, 54, 824 P.2d 1105, 1116.

87 Title 23 O.S. § 9.1A, sets out 7 factors ⁴² to be considered in analyzing punitive damages. Acknowledging the sanctity of the jury's function, we will not reweigh the evidence. Instead, we must review the record to determine whether the § 9.1(A) factors overtly favor one side over the other and whether the $20 million verdict for punitive damages was, under the teachings of Timmons v. Royal Globe Ins. Co., supra., due to “an improper sympathetic response ․ larger than reason dictates to be necessary to deter such conduct ․”. Id., at 44.

88 The § 9.1A factors may be summarized and applied in this case as follows: First: the general public was not harmed by the 12:37, p.m., update. 23 O.S. § 9.1(A)(1). Second: whether Gannett directly or indirectly profited from publication of the 12:37, p.m., update (with the large increase of on-line views or “hits”) was not clear from the appellate record. 23 O.S. § 9.1(A)(2). Third: while Sapulpa's name was removed from the website of The Oklahoman following Gannett's discovery of the false report within approximately 5 hours, Sapulpa will suffer from the lasting impact of the story because, once published on the internet, the story will linger and be exceptionally difficult to combat. 23 O.S. § 9.1(A)(3). Fourth: the evidence of Gannett's financial condition that was admitted, without objection, during stage two of the trial was Gannett's annual 10-K filing for the period ending December 31, 2022. See Def.’s Ex. 101; 23 O.S. § 9.1(A)(7). That exhibit contains technical data which was not explained to the jury and, consequently, provided little value to the appellate record. Fifth: the factor concerning the number and level of employees involved for Gannett favored Sapulpa to some degree because of the involvement of Sharp, the paper's news editor. 23 O.S. § 9.1(A)(6). On the other hand, the decision to publish by Sharp was tempered by the relatively prompt decision of the Executive Editor, Ray Rivera, to have Sapulpa's name removed from the story. Id. The remaining two (2) factors (i.e., the degree of the defendant's awareness of hazard (§ 9.1(A)(4)) and the attitude and conduct of the defendant upon discovery (§ 9.1(A)(5)) do not, in our view, favor one side over the other.

89 After a review of the record and consideration of all relevant factors, we find that, even if the evidence satisfied the Category II or Category III standards, the $20 million punitive damages award was unconscionable, grossly excessive, and much larger than reason dictates to be necessary to deter such conduct in the future and that remittitur is the appropriate remedy. We find that remittitur is proper for all punitive damages in excess of $2.5 million. This amount of punitive damages would be consistent with an award of Category I punitive damages, pursuant to 23 O.S. § 9.1(B) and the § 9.1(A) factors. More specifically, a punitive damages award of $2.5 million represents one-half of the maximum amount of Category I punitive damages that were, as a matter of law, available to Sapulpa.  ⁴³ We view this amount to be proper, in part, in light of our ruling herein with respect to the error in awarding punitive damages on the IIED claim. In other words, we find that punitive damages were only properly presented to the jury on only one of the two claims for relief (i.e., the defamation claim). Sapulpa shall have 30 days after issuance of mandate to file for remittitur or the matter is reversed and remanded for a new trial on the issue of the amount of punitive damages consistent with this Opinion.

CONCLUSION

90 In accord with the foregoing analysis, the judgment of the trial court dated February 20, 2024, is affirmed, in part and reversed, in part, upon condition of the filing of a remittitur by Sapulpa as ordered herein. We find that the judgment of the trial court dated February 20, 2024, is affirmed upon condition of the filing of a remittitur by Sapulpa for all punitive damages amounts in excess of $2.5 million, representing a portion of the award of punitive damages. Upon the filing of a remittitur by Sapulpa, the overall judgment amount will be modified from a total of $25 million to $7.5 million, representing awards of $5 million for compensatory damages and $2.5 million for punitive damages. If said remittitur is not filed within 30 days following the issuance of a mandate in this case, the liability determination under both claims for relief and the award of $5 million for compensatory damages will stand affirmed, and the punitive damages award shall stand reversed, and the cause remanded to the trial court with directions to grant a new trial on the issue of the amount of punitive damages consistent with this Opinion.

1 Respectfully, I concur in part and dissent in part. I dissent to the majority's findings as to the amount of the remittitur of punitive damages. The punitive damages statute provides, in pertinent part:

C. Category II. Where the jury finds by clear and convincing evidence that:

1. The defendant has acted intentionally and with malice towards others; ․ the jury, in a separate proceeding conducted after the jury has made such finding and awarded actual damages, may award punitive damages in an amount not to exceed the greatest of:

a. Five Hundred Thousand Dollars ($500,000.00),

b. twice the amount of actual damages awarded, or

c. the increased financial benefit derived by the defendant or insurer as a direct result of the conduct causing the injury to the plaintiff and other persons or entities.

23 O.S. § 9.1. The majority correctly finds that the evidence supports the actual damages awarded. The majority also correctly finds, earlier in the opinion, that the evidence supported a finding of intentional infliction of emotional distress and that “the entire record, which, taken as a whole, demonstrates sufficient evidence, if believed, of ‘actual malice’ (clearly and convincingly) in the context of the New York Times v. Sullivan standard.” For example, the intentional conduct evidence showed that the reporter had multiple emails and voicemails noting the speaker was not Sapulpa, but the reporter chose to ignore those messages. Nevertheless, the majority concludes that the record does not show that Gannett acted intentionally and with malice for purposes of Category II punitive damages. The jury awarded $20,000,000 in punitive damages. The majority disproportionately reduces that award by nearly 90%. The clear and convincing evidence supports a finding that Gannett acted intentionally and with malice. Accordingly, the record supports an award of Category II punitive damages of twice the actual damages awarded. Therefore, based on the record here, I would order a remittitur of all but $10,000,000 of the punitive damages award, representing twice the actual damages award. I concur in the remainder of the decision.

FOOTNOTES

1.   Following the entry of the judgment in this case, an award of costs was entered by the trial court. The award of cost is on appeal and is assigned appellate Case No. 122,093. The two appeals are treated as companion cases pursuant to an earlier order of the Supreme Court.

2.   The original Plaintiffs were Scott Sapulpa, Pullman360, Inc., an Oklahoma corporation, Pullman360.com, LLC, an Oklahoma Limited Liability Company and Pullman360 Development, Inc., an Oklahoma corporation. In February 2023, the three Pullman360 Plaintiffs dismissed their claims.

3.   This is the second appeal in this matter. The first appeal, Case No. 119,922, affirmed the trial court's decision denying Gannett's motion to dismiss pursuant to Oklahoma's Citizen's Protection Act. See 12 O.S. § 1430, et seq.

4.   Providing an insignificant but noteworthy twist to the incident is the fact that the quarterfinals high school game between Norman High School and Midwest City was played in Sapulpa, Oklahoma, the hometown of the Plaintiff, Scott Sapulpa. He testified the town of Sapulpa was named after his (i.e., Scott Sapulpa's) great grandfather, and the Plaintiff, Scott Sapulpa, lived in the town of Sapulpa until his parents divorced (when he was only about 1-2 years old).

5.   There is some evidence in the record that Sapulpa responded to Rowan's racist comments with the retort, “are you serious?”

6.   See Def. Ex. 1.

7.   The online story was updated multiple times by the paper following the first publication at 11:00, a.m., including at 12:37, p.m., 2:26, p.m., 3:05, p.m., 3:37, p.m., 5:35, p.m., and 6:18, p.m.

8.   The Oklahoman published the article to Gannett's Nationwide Network of news outlets. As a result of this act, the article was picked up by USA, Today and other outlets. The record includes articles that reference or report on the incident by The Frontier (Def. Ex. 29), CNN (Def. Ex. 30), abcnews.com (Def. Ex. 31), espn.com (Def. Ex. 32), si.com (Def. Ex. 33), al.com (Def. Ex. 34), The Norman Transcript (Def. Ex. 35), the Tulsa World (Def. 36) the Tahlequah Daily Press (Def. Ex. 37), Sapulpa Herald (Def. Ex. 38) cnhinews.com (Def. Ex. 39), nondoc.com (Def. Ex. 40), deadspin.com (Def. Ex. 41), sportingnews.com (Def. 42), paulsvalleydaileydemocrat.com (Def. Ex. 43).

9.   See Pl. Ex. 49.

10.   See Pl. Ex.’s 45 & 47.

11.   Jourdan attempted to explain at trial that his reference to “three people ․” was a mere typo, adding that he should have written “two people”.

12.   See Pl. Ex. 58.

13.   See Pl. Ex. 58.

14.   See Def. Ex. 10.

15.   The Times Court reached this heightened defamation standard by applying a balancing test which compared the constitutional interest in safeguarding expression against the societal interest in protecting individuals from reputational injury. New York Times v. Sullivan, at 371-73. While novel to defamation cases at the time, this balancing test was certainly not unfamiliar to the U.S. Supreme Court and had been used in constitutional jurisprudence in cases where government action implicated a fundamental liberty interest. See e.g., Meyer v. Nebraska, 262 U.S. 390 (1923); See also, e.g., Pierce v. Soc'y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510 (1925). Similarly, a state's enforcement of defamation statutes must strike an appropriate balance between its “state interest” of remedying reputational injury and the “fundamental liberty interest” in protecting free speech and expression. See e.g., Curtis Pub. Co. v. Butts, 388 U.S. 130, 153 (1967) (the evaluation of defamation claims must “strike a fair balance between the interests of the community in free circulation of information and those of individuals in seeking recompense for harm done by the circulation of defamatory falsehood.”). Nevertheless, “[n]ot all speech is of equal First Amendment importance,” and the scales of this balancing test, accordingly, fluctuate where the topic of the purported defamatory speech is a matter of “purely private significance”. Snyder v. Phelps, 562 U.S. 443, 452 (2011); See also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (speech related to matters of purely private concern is subject to “less stringent” constitutional protections).

16.   The Supreme Court defined “actual malice” in this context as a statement made “with knowledge that it was false or with reckless disregard of whether it was false or not”. New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).

17.   Gannett also cited to Luper v. Black Dispatch Pub. Co., 1983 OK CIV APP 54, 0, 675 P.2d 1028, 1029 and Strong v. Oklahoma Pub. Co., 1995 OK CIV APP 89, 899 P.2d 946, both of which involve public school employees who were deemed “public officials” in their defamation actions. Nevertheless, the plaintiffs in both Luper and Strong are distinguishable from Sapulpa based upon their choices to voluntarily engage in political, social, and administrative functions outside of their roles as public educators. In Luper, the plaintiff -- Clara Luper -- was not only a public school teacher, but also “a well-known civil rights worker, radio show hostess, and author.” Luper., 1983 OK CIV APP at 3. Similarly, the plaintiff in Strong “was the vice-president of the Millwood school board” at the time of the defamatory publication, and this Court found that, in his role on the school board, the plaintiff “possess[ed] the power to officially influence the employment of teachers.” Strong, at 12. Both the Luper and Strong plaintiffs “assumed roles of especial prominence in the affairs of society” -- Luper by way of her activism and voluntary media involvement; Strong by serving in an elected, leadership position in local government. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S. Ct. 2997, 3009, 41 L. Ed. 2d 789 (1974).

18.   The Oklahoma Press Association and the Oklahoma Association of Broadcasters filed a brief of amicus curiae focusing upon the trial court's determination that Sapulpa was a private figure. The arguments presented in the amicus brief largely mirror Gannett's contentions regarding Sapulpa's public vs. private figure status, including a lengthy quotation of Johnston v. Corinthian Television Corp., 1978 OK 88, 583 P.2d 110, so to assert that Sapulpa is a “public official” because he was a public school teacher at the time of the alleged defamation. We have addressed Johnston’s application to the underlying appeal in depth above.

19.   The Reporters Committee for Freedom of the Press, joined by Eleven (11) Media Organizations, filed a brief of amicus curiae presenting arguments on the topic of “actual malice” and the evidentiary threshold necessary to meet this exacting standard. The amici stressed that inadequate investigation and/or journalistic error, alone, does not satisfy the “actual malice” standard. We agree with the amici’s general legal contentions and concerns for chilled speech, but find that Gannett's conduct went beyond mere “sloppy journalism”. The scant evidence in the record regarding Ryan Sharp's understanding that Jourdan, in fact, had two sources provided an adequate foundation for the jury to have disbelieved Sharp and, thereby, concluded “that the defendant actually had a ‘high degree of awareness of ․ probably falsity’’’ at the time of publication. Gray v. St. Martin's Press, Inc., 221 F.3d 243, 251--52 (1st Cir. 2000) (citing Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989).

20.   All but one of the cases cited by Gannett in its second proposition involved claims by persons who were deemed public figures/officials: i.e., Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991) (where the plaintiff was a leading psychoanalytic scholar); Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989) (where the plaintiff was an unsuccessful judicial candidate); Time, Inc. v. Pape, 401 U.S. 279 (1971) (where the plaintiff was the Deputy Chief of Detectives of a police department); Talley v. Time Inc., 923 F.3d 878 (10th Cir. 2019) (although the plaintiff there was a private college football booster, his claim was for false-light invasion of privacy, not defamation); Herbert v. Oklahoma Christian Coalition, 1999 OK 90(where the plaintiff was a state senator); Miskovsky v. Tulsa Tribune Co, 1983 OK 73(where the plaintiff was a U.S. Senate candidate); Miskovsky v. Oklahoma Pub. Co., 1982 OK 8(where the plaintiff was a U.S. Senate candidate); Jurkowski v. Crawley, 1981 OK 110(where the plaintiff was a chief of police); Hart v. Blalock, 1997 OK 8, 9, 932 P.2d 1124, 1126 (where the plaintiff was a candidate for judicial office).

21.   In New York Times Co. v. Sullivan, 376 U.S. 254, 279--80 (1964), the U.S. Supreme Court established that “[t]he constitutional guarantees require ․ a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’--that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”. See also Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986) (“[h]ere, as in Gertz, the plaintiff is a private figure and the newspaper articles are of public concern. In Gertz, as in New York Times, the common-law rule was superseded by a constitutional rule. We believe that the common law's rule on falsity--that the defendant must bear the burden of proving truth--must similarly fall here to a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages.”).

22.   Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) (“[w]e hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.”)

23.   Sapulpa's Answer Brief, at p. 23, sets out the following proposition heading in response to Gannett's proposition II: “Even if Actual Malice Applied, the Trial Evidence Was Sufficient to Permit the Jury to Find it Met, by Clear and Convincing Evidence.” The Answer Brief also states, at p. 24, that “․ the Court must make a legal determination of whether the jury could have found actual malice by clear and convincing evidence if that standard applies (which it should not).” (emphasis added).

24.   Jury Instruction No. 17, laid out the elements of the defamation claim which did not require a finding of “actual malice”. Gannett has challenged the “meagerness” of Instruction No. 16, arguing that it was merely a “bare-boned OUJI” instruction and that, as given, Instruction No. 16 laid out a subjective test concerning Gannett's state of mind. Instruction No. 17, on the other hand, laid out the elements of a negligence defamation case, based on the trial court's ruling that Sapulpa was to be treated as a private person. The objective standard of recklessness -- a test related to the reasonableness of Gannett's conduct -- is how Gannett argues the jury should have been instructed. We reject Gannett's challenge to Instruction No. 16 based on the fact that Gannett has not shown that there was a probability that the jurors were misled and thereby reached a different result than they would have reached but for the error. See e.g., Bouziden v. Alfalfa Elec. Co-op., Inc., 2000 OK 50, 35, 16 P.3d 450, 460.

25.   See Rodebush By & Through Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160, 19, 867 P.2d 1241, 1247 (“[t]his threshold finding requires analysis of the evidence to determine whether there is clear and convincing evidence that the defendant acted with wanton or reckless disregard for the rights of the plaintiff, oppression, fraud, or actual or presumed malice. (citation omitted). We agree with the Tenth Circuit that this initial determination is a question of law for the trial court. (citation omitted). The statute itself makes clear that this determination is one to be made by the judge as the decider of law.”).

26.   This argument is contained in propositions IIIA(1) & B(1) of the Br.-in-Chief.

27.   Jury Instruction No. 19, set out the measure of damages for the defamation claim, which represented a conformed version of OUJI 28.9, as follows:“If you decide for Scott Sapulpa, you must then fix the amount of his damages. This is the amount of money that will reasonably and fairly compensate him for the injury sustained as a result of the defamation by Defendant.In fixing the amount you will award Scott Sapulpa, you may consider the following elements:1. Financial losses, such as loss of earnings/profits;2. Injury to reputation and standing in the community;3. Personal humiliation;4. Mental anguish and suffering.”

28.   See Brown v. Muldrow Pub. Sch., 2024 OK CIV APP 20, 21, 557 P.3d 1063, 1073 (“[a] directed verdict ‘is a mechanism by which the judge controls the jury by taking the case out of the jurors’ hands, and acts somewhat like a delayed summary judgment motion in that it determines that there are no genuine issues of fact that need to be sent to the jury.’ Cook v. Bishop, 1988 OK 120, 9, 764 P.2d 189, 191. A directed verdict should only be granted where there is ‘an entire absence of proof on a material issue,’ and must be denied ‘when there are questions of material fact or reasonable persons could differ as to the choice of inferences to be drawn from the facts in evidence.’ Estrada v. Port City Properties, Inc., 2007 OK CIV APP 23, 10, 158 P.3d 495, 499 (citing Harder v. F.C. Clinton, Inc., 1997 OK 137, 6, 948 P.2d 298, 301--302)”).

29.   Sapulpa argues that Gannett waived any objection to Kaplan's testimony by failing to make an “overall objection” to his testimony during the trial and that Gannett should not be permitted to now rely, instead, on its pre-trial Daubert motion to preserve its challenge to Kaplan's testimony. See Covel, Ind. and as Rep. of the Estate of H.K. Covel, Deceased v. Rodriquez, et al., 2012 OK 5, 272 P.3d 705; Chesapeake Operating Inc. v. Kast Tr. Farms, 2015 OK CIV APP 5, 17, 352 P.3d 1231, 1236 (“[b]y failing to raise a timely Daubert objection to the purported objectionable testimony during trial, Chesapeake waived the error on appeal, in the absence of fundamental error.”). In the face of the holdings in Covel and Chesapeake, Gannett counters that its sole objection to Kaplan is with respect to the relevance of his testimony and that it is not now challenging Kaplan's qualifications. Presumably, Gannett is not now challenging Kaplan's methodology as well. Thus, based on Gannett's stated position with respect to Kaplan, we reject Sapulpa's waiver argument.

30.   Title 12 O.S. § 2702, has codified the Daubert standard as follows:If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise, if:1. The testimony is based upon sufficient facts or data;2. The testimony is the product of reliable principles and methods; and3. The witness has applied the principles and methods reliably to the facts of the case.

31.   See OUJI Cautionary Instructions: i.e., No. 1 (use of electronic devices and research prohibited); No. 1.1 (explanation to jury panel of voir dire); No. 1.10 (note taking by jurors); No. 1.10A (support animal); No. 1.2 (oath on voir dire); No. 1.2A (juror questionnaire); No. 1.4 (jury's duties); No. 1.5 (bias on account of race, religion, etc.); No. 1.6 (corporation as party); No. 1.7 (note taking by jurors).

32.   The difference between the elements of the private person theory and the public figure theory are clearly shown by Gannett's Requested (Alternative) & 12A. Element 5 in its Requested Instruction No. 12, provided, in part, that “[t]he defendant did not exercise the care which a reasonably careful person engaged in the same kind of business would ordinarily use ․”. In contrast, element 6 in Gannett's Requested Instruction No. 12A, provided, in part, that “[t]he defendant either knew the statement was false or had serious doubt about whether the statement was true or false ․”.

33.   Gannett's Requested Instruction No. 40, reads, in part, as follows: “․ You are instructed that this knowledge or awareness of falsity necessary to prove defamation is the same level of knowledge or awareness of falsity that the plaintiff must prove clearly and convincingly to entitle him to recover punitive damages.”

34.   Title 23 O.S. § 61 states: “[f]or the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this chapter, is the amount which will compensate for all detriment proximately caused thereby, whether it could have been anticipated or not.”

35.   The cases cited by Gannett include Lerman v. Flynt Distrib. Co., Inc., 745 F.2d 123, 141 (3rd Cir. 1984), Newton v. National Broadcasting Co., 677 F. Supp. 1066, 1069 (D. Nev. 1987), rev'd on other grounds, Lewis v. Elliott, 628 F. Supp. 512, 523 (D.D.C. 1986), Nevada Ind. Broadcasting Corp. v. Allen, 664 P.2d 337, 346 (Nev. 1983), and Burnett v. National Enquirer, Inc., 144 Cal. App.3d 991, 997 (Cal. App. 2d Dist. 1983).

36.   If Category I damages are awarded, the award may not exceed the greater of $100,000.00, or the amount of actual damages awarded. 23 O.S. § 9.1(B). If Category II damages are awarded, the award may not exceed the “greatest of” $500,000.00, twice the amount of actual damages awarded, or the increased financial benefit derived by the defendant as a direct result of the conduct causing the injury to the plaintiff. 23 O.S. § 9.1(C). If Category III damages are awarded, the jury may award punitive damages in any amount the jury deems appropriate, without regard to the limitations of subsections (B) and (C). 23 O.S. § 9.1(D). In determining the amount of punitive damages to be awarded under any category, “the jury shall make the award based upon the factors set forth in subsection A of this section.” 23 O.S. § 9.1(E).

37.   “Malice”, as utilized in OUJI 5.6, was discussed in Gowens v. Barstow, 2015 OK 85, 20, 364 P.3d 644, 652, in part, as follows: “Although both reckless disregard and intentional acts of malice may be the basis for a punitive damages award, the OUJI instruction clearly distinguishes the two. Additionally, the two are distinguished in statute. The statute concerning punitive damages provides lesser damages for acts constituting reckless disregard than for acts constituting malice.” See Krug v. Helmerich & Payne, Inc., 2013 OK 104, 32, 320 P.3d 1012, 1021, as corrected (Feb. 24, 2014) (where the punitive damages jury instruction “defined malice [as follows]: ‘Malice involves either hatred, spite or ill-will, or else the doing of a wrongful act intentionally without just cause or excuse.’ ”).

38.   The Supreme Court defined “actual malice” as a statement made “with knowledge that it was false or with reckless disregard of whether it was false or not”. New York Times Co. Sullivan, 376 U.S. 254, 280 (1964).

39.   Under 23 O.S. § 9.1(B)(1), adopted in 1995, Category I punitive damages may be awarded if the jury finds, by clear and convincing evidence, that “the defendant has been guilty of reckless disregard for the rights of others ․”. Compare Slocum v. Phillips Petroleum Co., 1983 OK 112, 17, 678 P.2d 716, 719 (where the Supreme Court stated, in part, that “[t]o entitle a plaintiff to recover exemplary damages in an action sounding in tort, the proof must show some elements of fraud, malice or oppression. The act which constitutes the cause of action must be actuated by or accompanied with some evil intent, or must be the result of such gross negligence--such disregard of another's rights--as is deemed equivalent to such intent.”).

40.   City of Stillwater v. Cent. Rural Elec. Co-op., 1997 OK CIV APP 51, 4, 945 P.2d 505, 507 (“this court must give [statutes] ․ an interpretation consistent with the plain meaning of the words employed, the context in which the words are used, and the subject to which they refer.”).

41.   In Gilbert, 2006 OK 58, the Court commented on the continued vitality of remittitur under the current version of 23 O.S. § 9.1. The Gilbert Court reviewed the current version of § 9.1 and stated that “a punitive damages award which is awarded in a manner inconsistent with title 23, section 9.1(C) is no longer subject to remittitur but must be remanded for a new trial. This provision does not prohibit the remittitur of a punitive damages award which has been properly awarded under section 9.1(C) but found to be constitutionally excessive.” Id., at n. 99 (emphasis added).

42.   Title 23 O.S. § 9.1(A) provides that “[i]n an action for the breach of an obligation not arising from contract, the jury, in addition to actual damages, may ․ award punitive damages for the sake of example and by way of punishing the defendant based upon the following factors:1. The seriousness of the hazard to the public arising from the defendant's misconduct;2. The profitability of the misconduct to the defendant;3. The duration of the misconduct and any concealment of it;4. The degree of the defendant's awareness of the hazard and of its excessiveness;5. The attitude and conduct of the defendant upon discovery of the misconduct or hazard;6. In the case of a defendant which is a corporation or other entity, the number and level of employees involved in causing or concealing the misconduct; and7. The financial condition of the defendant.”

43.   The Concurrence in part and Dissent in part takes the position that the record supports Category II punitive damages which, if correct, would establish the ceiling for punitive damages at $10 million. The view of the Majority Opinion, on the other hand, is that neither Category II nor III punitive damages were authorized by the first-stage verdict and, therefore, that the maximum ceiling for punitive damages should be established at $5 million (prior to remittitur). More specifically, the view of the Majority Opinion is that, while the facts in the appellate record, if believed, demonstrated “actual malice” (as used for purposes of New York Times v. Sullivan, and which may be described as “constitutional malice”), the evidence did not demonstrate that Gannett “acted intentionally and with malice” (i.e., as used for purposes of punitive damages under 23 O.S. § 9.1(C) and (D), and which may be described as “common law” malice). The error by the trial court in failing to recognize the differences between these standards and to properly apply them is echoed in the reasoning of the Concurrence in part and Dissent in part.

OPINION BY THOMAS E. PRINCE, JUDGE:

GOREE, P.J., concurs and SWINTON, J., concurs in part and dissents in part