The full case caption appears at the
end of this opinion. This is an appeal from a Superior Court judgment in a libel actionfollowing a jury verdict assessing damages. The plaintiff-appellee, MargoKanaga, M.D. (“Dr. Kanaga”) claimed to have been libeled by a newspaperaccount of her treatment of a former patient, Pamela Kane (“Kane”). Thearticle in question was written by Jane Harriman (“Harriman”) and publishedin a daily newspaper distributed by Harriman’s employer, Gannett Co., Inc. t/aThe News Journal Company (“Gannett”). Gannett and Harriman (collectivelythe “media defendants”) defended the article as a substantially accurate reportof a complaint to the New Castle County Medical Society and, thus,constitutionally protected. The jury determined, through answers to specific interrogatories, that thearticle was factually false and defamatory. The jury also determined that thearticle caused actual damage to Dr. Kanaga, awarding her $2.6 million incompensatory damages and $250,000 in punitive damages. The jury madeseparate compensatory and punitive damage awards against Kane. The awardsagainst Kane, however, have not been appealed. In this appeal, the media defendants contend that the article in dispute wasconstitutionally protected fair comment and, as a matter of law, not defamation.They also challenge the award of actual damages on the ground that it was basedon speculation and inadmissible expert testimony. Dr. Kanaga cross-appeals.4from the Superior Court’s exclusion of evidence of Gannett’s wealth in relationto the proof of punitive damages. We conclude that the jury’s determination of liability is sustainablefactually and is consistent with the law of the case. We further conclude,however, that the jury’s verdict fixing actual damages was based upon experttestimony, to which timely objection was made, that lacked an admissiblefoundation. Accordingly, we reverse the damages award. With respect to thecross-appeal, we hold that under the modern view on punitive damages, thewealth of the defendant is an admissible factor and reverse the Superior Court’sholding to the contrary. In sum, we affirm the determination of liability butreverse the award of both actual and punitive damages and remand for a newtrial limited to damages. I The factual basis for this litigation is set forth at length in a previousdecision of this Court that reversed a grant of summary judgment in favor of thedefendants. See Kanaga v. Gannett Co. Inc., Del. Supr., 687 A.2d 173 (1996)(“Kanaga I”). We briefly summarize those facts as they unfolded at trial. Kane consulted Dr. Kanaga on April 2, 1992, after complaining of aheavy menstrual flow. During a physical examination, Dr. Kanaga observed a.5fibroid tumor “sitting in her cervix.” Dr. Kanaga told Kane about the tumorand that its position would prevent her from doing a myomectomy (removal bysurgical forceps). Dr. Kanaga recommended a hysterectomy for treatment ofthe tumor and also recommended that Kane have her ovaries and tubes removedbecause of a risk of ovarian cancer. Dr. Kanaga testified that she discussed withKane her opinion that a myomectomy would be a risky procedure and not thesafest or best method for treatment considering Kane’s age and the position ofthe tumor. Dr. Kanaga, however, advised Kane to obtain a second opinion. OnApril 10, 1992, Dr. Kanaga’s office received a request by Kane for a copy ofher medical records in order to obtain a second opinion. On April 19, 1992, Kane experienced heavy bleeding and consultedRonaldo Domingo, M.D. (“Dr. Domingo”) at the emergency room at St.Francis Hospital. Apparently, the tumor had changed position, because, uponexamination, Dr. Domingo observed the tumor “coming two-thirds out of thecanal.” Dr. Domingo attempted to determine whether the fibroid could be easilyremoved by grabbing it with forceps and twisting it. After twisting it severaltimes, the fibroid came out. Subsequently, Kane asked Dr. Domingo whethershe needed a hysterectomy. Since Kane had told him previously that anotherdoctor had recommended a hysterectomy, Dr. Domingo was not surprised bythis question, but told Kane that she did not need one “because she’s no longerbleeding and the submucous fibroid is out.” On April 29, 1992, Kane called Dr. Kanaga’s office to discuss schedulinga hysterectomy. Dr. Kanaga returned the call the next morning but was toldKane was unavailable and would call her that afternoon. When Kane called Dr.Kanaga, Kane secretly tape recorded the conversation.
[FOOTNOTE 1] During thisconversation, Kane led Dr. Kanaga to believe that she had received a secondopinion concerning the hysterectomy. Kane, apparently believing that Dr. Kanaga had recommended anunnecessary surgical procedure for financial gain, contacted Harriman, areporter for the News Journal who reported on health matters. The two met atKane’s home, and Harriman was told Kane’s version of the events, including theplaying of the secretly recorded telephone conversation. Approximately oneweek later, Kane filed a written complaint with the New Castle County MedicalSociety alleging that Dr. Kanaga had recommended an unnecessary surgicalprocedure for financial gain. Kane had earlier shared this complaint withHarriman. Harriman proceeded to write an article detailing Kane’s experience withDr. Kanaga. Before the article was published, there was an apparent differenceof opinion at the News Journal whether publication should be deferred pendingthe Medical Society action on Kane’s complaint. Harriman testified that sherecommended that “we wait until after the New Castle County Medical Societymakes a decision.” She was overruled, however, by her editorial supervisors. On July 5, 1992, the newspaper article in question was published entitled”Patient feels betrayed – Says proposed hysterectomy wasn’t needed.” The fulltext is printed in Kanaga I, 687 A.2d at 184-85. The theme of the article iscaptured in its opening paragraph: BRANDYWINE HUNDRED – Pamela Kane feels thehysterectomy urged on her by a gynecologist she trusted wouldhave been unnecessary, and she believes her story should be awarning to other women. The disputed article appeared in full color on the front page of the LocalSection of the July 5, 1992, Sunday News Journal. It was announced by a”teaser” on page 1 of the newspaper which included a photograph of Kane.Although the article noted that Dr. Kanaga had refused “to respond to areporter’s telephone calls or a reporter’s letter seeking comments,” it did notfully explain Dr. Kanaga’s refusal, on ethical grounds, to discuss a patient’s careor records in a matter pending before the Medical Society without writtenauthorization of the patient. The article also described Dr. Domingo’s reaction.8to Dr. Kanaga’s treatment recommendation as “incredulous” even thoughHarriman had not verified the direct quotes attributed to Dr. Domingo. The Medical Society ruled on Kane’s complaint against Dr. Kanaga eightweeks after publication of the article. It found no basis for discipline against Dr.Kanaga, ruling, in effect, that a hysterectomy was “one of several appropriatetherapies” for Kane’s condition. The News Journal reported the MedicalSociety’s ruling in an article headlined “Medical Unit Backs Doctor onTreatment.” The case was submitted to the jury in two phases through specialinterrogatories. In the first phase, the jury found, as to the media defendants,that: (i) the July 5 article was defamatory; (ii) the gist of the article was false;(iii) the statements were factual in nature; and (iv) that the article wasnegligently published. The jury fixed actual damages in the amount of $2.6million. The second phase of the trial involved the presentation of evidence ofpunitive damages. As to the media defendants, the jury concluded that Dr.Kanaga had shown by clear and convincing evidence that both defendants hadcaused the July 5 article to be published with knowledge of its falsity and hadacted outrageously. The jury awarded $250,000 in punitive damages againstGannett and $10,000 against Harriman. II The media defendants, Gannett and Harriman (hereafter “Gannett”), haveasserted claims of error directed to both the liability and damages determinationof the jury’s findings against them. As to liability, Gannett contends that, undera journalistic standard of care, it should not be held liable for an article that wasessentially true. Moreover, it argues that the disputed article was a faircomment on a matter pending before a public body and, thus, wasconstitutionally protected. A. At the conclusion of Dr. Kanaga’s evidence at trial, Gannett moved forjudgment as a matter of law on the question of whether the disputed article wasfact or merely opinion. In denying the motion, the Superior Court concludedthat the issue of whether the article was fact or opinion posed a jury question.We agree. Taken as a whole, the article conveys the impression that Dr. Kanagarecommended unnecessary surgery for financial gain. The reporting of Kane’scomplaint to the Medical Society was prefaced by a headline depicting thepatient as feeling betrayed by her physician – an obvious violation of the dutyowed by a physician to a patient. The use of the term “incredulously” todescribe Dr. Domingo’s view of Kane’s treatment by Dr. Kanaga also lacked afactual basis. In providing a characterization of Dr. Kanaga’s conduct by afellow physician that questioned Dr. Kanaga’s medical ethics, the article, on itsface, impinged upon her professional image. Apart from the unfavorable depiction of Kane’s treatment by Dr. Kanaga,the jury could conclude that the timing of the publication of the article evidencedjournalistic irresponsibility. As the trial judge noted in denying Gannett’s post-trialmotion for judgment or a new trial: Ms. Harriman and her superiors at Gannett were aware prior toJuly 5th that a ruling would be made by the Medical Society in thenear future yet they decided to present a highly charged, biased,one-sided version of events. This story did not involve a planecrash or other immediate news event. In addition, the medicalrecords attached to Kane’s complaint and which Ms. Harriman hadprior to presenting the article differed in several key respects fromKane’s complaint. In short, the media defendants had informationavailable from these records to further alert them to the dangers ofproceeding full speed ahead through Kane’s torpedoes. Onetreatise from England, for instance, which Ms. Harriman used waseven unknown to the media defendant’s medical expert. Kanaga v. Gannett Co., Inc., Del. Super., C.A. No. 92C-12-182-JOH, 1998WL 729585, at *6 (July 10, 1998). Relying upon the Restatement (Second) of Torts, � 580B, cmt. g (1977),Gannett appears to suggest that juries should not be permitted to draw “layinferences” to determine false or defamatory communications. It is not clearfrom the record that Gannett presented this argument below, but, in any event,we find it unavailing. Under D.R.E. 702, expert testimony is admissible if.11scientific, technical or other specialized knowledge will assist the trier of fact tounderstand the evidence or to determine a fact in issue. Whether experttestimony is required to pose a factual issue is a different question. There issome decisional support for the claim that expert testimony is required to provenegligence of a media defendant in a libel action. See e.g. Seegmiller v. KLS,Inc., Utah Supr., 626 P.2d 968, 976 (1981). The majority, and better reasonedview, appears to the contrary. See Kohn v. West Hawaii Today, Inc., Haw.Supr., 656 P.2d 79, 83 (1982); Schrottman v. Barnicle, Mass Supr., 437 N.E.2d205, 215 (1982); Greenberg v. CBS, Inc., N.Y. App. Div., 419 N.Y.S.2d 988,998 (1979). Gannett has not suggested what specialized knowledge was necessary toassist the jury. Although Harriman had many years of experience as a reporter,she had no special training to become one. The issue of whether the mediadefendants deviated from a journalistic standard of care was well within thegrasp of a jury and no expert testimony was necessary. Gannett concedes that the trial judge properly instructed the jury that Dr.Kanaga was required to prove that Gannett had “deviated from that degree ofcare, caution or attention that a reasonable reporter and newspaper would useunder similar circumstances.” In Kanaga I, 687 A.2d at 182, this Court setforth certain factual issues that the record, as now constituted, properly posedfor the jury concerning both the content and timing of the article. The evidencepresented at trial fully supported the viability of those issues for juryconsideration. In rejecting Gannett’s explanation that Harriman followedaccepted newspaper reporting techniques in investigating the facts and craftingthe article, the jury viewed Gannett’s conduct as fully below acceptablestandards to the point of irresponsibility. B. Gannett, supported by the amici,
[FOOTNOTE 2] further argues that the conduct of themedia defendants is constitutionally protected by the fair reporting privilege.This claim was asserted before and after trial in the Superior Court, and wereview it under a de novo standard. We note, however, that this claim wasconsidered at length in Kanaga I, 687 A.2d 173, and is largely controlled by thelaw of the case. See Kenton v. Kenton, Del. Supr., 571 A.2d 778, 784 (1990)(“The ‘law of the case’ is established when a specific legal principle is appliedto an issue presented by facts which remain constant throughout the subsequentcourse of the same litigation.”) The Chancellor’s dissent revisits issues already decided by this Court inKanaga I. In that Opinion, these issues were subsumed in the calculus of thisCourt’s careful and thorough consideration of the libel and First Amendmentjurisprudence. We believe those issues were correctly decided in Kanaga I.Accordingly, it serves no useful purpose to reconsider them on this appeal. Thelaw of the case doctrine requires that there must be some closure to mattersalready decided in a given case by the highest court of a particular jurisdiction,particularly when (with a different composition of jurists) that same court isconsidering matters in a later phase of the same litigation. The Chancellor correctly notes that the law of the case doctrine is notinflexible in that, unlike res judicata, it is not an absolute bar to reconsiderationof a prior decision that is clearly wrong, produces an injustice or should berevisited because of changed circumstances. See Brittingham v. State, Del.Supr., 705 A.2d 577, 579 (1998); Zirn v. VLI Corp., Del. Supr., 681 A.2d1050, 1062 n.7 (1996). The law of the case doctrine, like the stare decisisdoctrine, is founded on the principle of stability and respect for court processesand precedent. The stare decisis discussion of the majority of the United StatesSupreme Court in the case of Planned Parenthood of Southeastern Pa. v. Casey,505 U.S. 833, 866 (1992), is applicable by analogy to the law of the caseprinciples that should guide us in this case: [F]requent overruling would overtax the country’s belief in theCourt’s good faith. . . . [Excessive] disturbance of prior rulingswould be taken as evidence that justifiable reexamination ofprinciple had given way to drives for particular results in the shortterm. The legitimacy of the Court would fade with the frequencyof its vacillation. Exceptions to the law of the case doctrine for clearly erroneous decisions,unjust results or significantly changed circumstances are not applicable here.Cf. Weedon v. State, Del. Supr., __A.2d__, No. 256, 1999, Walsh J. (April 14,2000) (recantation of factual basis for hearsay exception may provide basis fordifferent ruling notwithstanding the law of the case doctrine). Our decision inKanaga I is sound law and properly takes its place in the solid jurisprudence ofthis Court. When viewed through the retrospective lens of the trial in this casethat followed that decision, it is clear that the defamation issues were properlysubmitted to the jury and should not have been decided on summary judgment.The verdict here on the issue of liability (as distinct from damages) wassupported by ample evidence. The basic thrust of Gannett’s fair reporting defense is that the disputedarticle “accurately reported Kane’s allegations” in a matter of public concernpending before a tribunal whose proceedings are “authorized by law.” Theamici argue that the First Amendment provides a constitutional privilege toreport on charges of misconduct made to official or quasi-official disciplinarybodies and that this case bears similarity to the decision of the United StatesSupreme Court in Landmark Communications Inc. v. Virginia, 435 U.S. 829(1978). In Landmark, the Court reversed the criminal conviction of a newspaperpublisher who reported on the pending inquiry of a judicial disciplinarycommittee into the alleged misconduct of a judge. The Court ruled that the needfor confidentiality in commission proceedings did not justify the infringementof First Amendment guarantees through criminal sanctions. The amici contendthat the description of a complaint to the Medical Society relating to thecompetence of a physician is, at least, as much of public concern as the conductof a judge. While certain language in Landmark is supportive of the principle of freeexpression by the media, that holding must be viewed in the context of theunderlying criminal prosecution which prompted review. Landmark did notinvolve a private action for defamation but, rather, a direct state action to punishfor truthful and accurate publication of a government proceeding. Accordingly,the Court’s concern that governmental action through criminal sanctions mayprove a form of censorship is not implicated here. Further, Dr. Kanaga was nota public official nor had she thrust herself into the public gaze. Her actions thatwere the subject of media scrutiny occurred entirely within the private treatmentof a patient. Any review of that treatment by a regulatory body was, itself,subject to an aura of confidentiality for the benefit of both the physician and thepatient. See Johnson Newspaper Corp. v. Melino, N.Y. Ct. App., 564 N.E.2d1046, 1050-51 (1990). Thus, she was protected from public or privatedefamation. As this Court noted in Kanaga I, in reversing the grant of summaryjudgment on the fair reporting claims, “since the statements published by theNews Journal do not constitute the fair and accurate reporting of a judicialproceeding or the governmental acts of executive officials of government, thefair reporting privilege does not protect these statements against actions forlibel.” 687 A.2d at 182. The media defendants were permitted to raise theprivilege as a defense, with the reasonableness of the claim left to the jury. Seeid. Even when the privilege is properly asserted, however, its protectionextends to opinion, not express or implied misstatements of fact. Here, the juryspecifically found that statements in the article were factual in nature and theirsubstance was false. Even if the privilege of fair reporting is viewed as one ofconstitutional stature, the article’s falsity takes it out of the realm of suchprotection. We conclude that the claim of defamation was correctly submitted to thejury under appropriate instructions by the Superior Court. We further concludethat the jury’s determination of liability is supported by the evidence and,therefore, we affirm. See Medical Center of Del. v. Lougheed, Del. Supr., 661A.2d 1055, 1061 (1995). III We next address Gannett’s attack on the award of damages. The mediadefendants contend that Dr. Kanaga failed to present legally cognizable evidenceof reputation injury and that her claim for lost profits was speculative and basedon inadmissible evidence. A. The parties are in sharp disagreement concerning the standard of reviewthat this Court should apply to Gannett’s damages claims. Gannett contends thatin view of the underlying constitutional privilege at issue, any award of damagesshould be subject to heightened appellate scrutiny. See NAACP v. ClaiborneHardware Co., 458 U.S. 886, 918 (1982). (“While the State legitimately mayimpose damages for the consequences of violent conduct, it may not awardcompensation for the consequences of nonviolent, protected activity. Only thoselosses proximately caused by unlawful conduct may be recovered.”). Dr.Kanaga maintains that the jury’s factual determinations are conclusive ifsupported by the evidence and, to the extent the damages awarded were affected.18by the admissibility of evidence, the trial court’s evidentiary rulings must bereviewed under an abuse of discretion standard. See Laws v. Webb, Del. Supr.,658 A.2d 1008 (1995). We need not decide whether review of the damages award arising out ofconstitutionally protected activity may implicate more exacting standards thanthose posed in other tort actions. Nevertheless, to recover in this case, Dr.Kanaga had to demonstrate “actual injury,” absent a showing of knowledge offalsity or reckless disregard for the truth. Gertz v. Robert Welch, Inc., 418 U.S.323, 348-49 (1974). Without defining actual injury, the United States SupremeCourt has stated that injury is not limited to out-of-pocket loss and would includeimpairment of reputation and standing in the community, personal humiliationand mental anguish and suffering. See id. at 350. Gertz has subsequently beenheld to be applicable when a matter of public concern was involved. See Dun& Bradstreet, Inc. v. Green Moss Builders, Inc., 472 U.S. 749, 760-61 (1985). To a significant degree, the scrutiny imposed on our review of thedamages awarded in this case has been limited by the jury’s factual finding offalsity in the liability phase of the trial. Moreover, the jury’s award of punitivedamages was based on a determination that the media defendants acted withreckless disregard for the truth of the statements contained in the disputedarticle. In view of the jury’s factual findings, we will review the Superior Courtrulings on evidence directed to the damages claim pursuant to an abuse ofdiscretion standard. B. The Superior Court instructed the jury that Dr. Kanaga must prove actualdamages. Under that court’s instructions, the jury award for actual damages hadtwo components: (i) humiliation and loss of reputation and (ii) past and futurelost income attributable to impairment of professional standing.
[FOOTNOTE 3] AlthoughGannett does not dispute the correctness of the court’s instruction, it contendsthat Dr. Kanaga produced no evidence of reputation injury through testimonyof patients or other physicians. Gannett fails, however, to credit Dr. Kanaga’sown testimony that she suffered “daily humiliation and embarrassment.” Dr.Kanaga also testified that while she did not directly hear conversations in”supermarkets, beauty parlors and elsewhere,” she was told about them. Wefurther find the scope of the defamation to be clearly established by its intendedcirculation to 140,000 readers. In Spence v. Funk, Del. Supr., 396 A.2d 967, 970 (1978) (citing ProsserLaw of Torts � 112 (1971)), this Court held that there is a presumption ofdamages with respect to statements that “malign one in a trade, business orprofession.” Thus, under Delaware law, injury to reputation is permittedwithout proof of special damages. In Kanaga I, this Court ruled that “[t]oaccuse Dr. Kanaga of recommending unnecessary surgery for her ownpecuniary gain is to malign her in her business or profession.” 687 A.2d at 181.Spence’s presumption would sustain a separate humiliation award in this casehad one been rendered. The jury’s 2.6 million dollar “actual damages” award,however, did not separate humiliation damages from economic damages. Onthis record, proof of the latter category is problematic. C. Four witnesses testified on Dr. Kanaga’s behalf on the issue ofcompensatory damages. Three of these witnesses were fact witnesses: Dr.Kanaga, Dr. Anna Marie D’Amico (“Dr. D’Amico”), and Dr. Kanaga’saccountant, Anthony D’Amato (“D’Amato”). John Stapleford, Ph.D.,(“Stapleford”), an economist, gave expert testimony concerning damages forpast and future lost income. Dr. Kanaga testified that she opened her solo practice in 1978 and that by1991 her “new patient” waiting list was “roughly three months.” In 1998,however, her appointment list had “plenty of openings.” As a specialist sherelied, in great part, on referrals from other physicians and patients. Dr.Kanaga also testified that following publication of the article, two people filedcomplaints against her with the Medical Society, and others called to say, “I’mnot coming to you because of the article.” In 1991, the last full year before thedefamatory article, her gross income was $769,038 with a net income of$441,149. In 1993, the first full year after the article, her gross had dropped to$556,151 and her net to $292,028. Dr. D’Amico, also a Wilmington obstetrician/gynecologist, testified thatshe had known Dr. Kanaga since early 1970 and considered her a “finepracticing physician.” Dr. D’Amico was shocked and outraged when she readthe News Journal article. She further testified that, at present, “women[OB/GYNS] are busier than ever” and that she has not seen a falling off ofincome in her own practice. The only other fact witness on damages was D’Amato. D’Amato wasproffered as a witness who, together with Dr. Kanaga, “will be providingcausation testimony.” During trial, the defendants objected to D’Amato’sproposed testimony on the ground that it would be opinion based. A voir direwas permitted, during which D’Amato was asked, “[h]as Doctor Kanaga toldyou that the news article she’s suing about caused her income to drop?”D’Amato responded, “[y]es. She’s mentioned that and I agree.” He was thenasked the basis for that opinion, to which he responded that he had manyphysician clients and that “her practice is the only one that has seen any severedrop-off of income over the past four or five years.” Also during voir dire,D’Amato, in response to a question whether he was offering comparisonopinion, stated that Dr. Kanaga’s income started above the others and “nowshe’s below.” Thereafter, defense counsel objected to D’Amato’s testimonybased on his not being identified as an expert, irrelevancy and hearsay. The Superior Court ruled that D’Amato would not be permitted to testifythat a decline in Kanaga’s income must be due to the newspaper article, statingthat “[i]n connection with comparison to other practices, it depends upon howfar that question goes to be honest with you. I think that goes more to weightthan to admissibility.” The court further held that D’Amato did not have toreveal the names of the other practices he considered. The defendants wereprovided no underlying documentation for the other practices as they hadrequested. D’Amato testified that he prepared the income tax return for Dr. Kanagaand her husband from data supplied by Dr. Kanaga. The work included thepreparation of Schedule Cs.
[FOOTNOTE 4] The Schedule Cs, which formed the basis for pastand future income losses, were offered for identification at the end of D’Amato’stestimony but were not thereafter offered into evidence or specifically referredto by D’Amato. D’Amato gave no testimony regarding specific dollar amountsfor Dr. Kanaga’s yearly income but spoke simply in terms of a “trend” incomparison with the income of other unidentified physicians. In overruling anobjection to D’Amato’s comparison testimony as hearsay, the trial judge ruled: First of all, the question does not elicit a hearsay answer.There’s no specific dollar figure. It is a question, a fact whetherit goes up or down. That’s not an opinion. Whether something ishigher than lower in terms of dollars and something else is not anopinion. That’s a fact. The amount, the difference, is not inevidence, and will not be in evidence, and I wouldn’t allow it to bein evidence, because your hearsay objection might be appropriate.But short of that, I will overrule the objection and I will note thatit’s made. (emphasis added). Thus, D’Amato was not permitted to testify as to a dollar difference between Dr.Kanaga’s practice and those of other physician clients. Despite this restriction, however, the earnings difference became a criticalfactor in the projection of lost income, past and future, when that matter becamethe subject of expert testimony. Gannett contends that the prejudicial effect ofthe admission of D’Amato’s comparison evidence, for which he provided neitherspecific dollar amounts nor causation, was compounded when Stapleford usedthat evidence and the Schedule Cs that were not offered into evidence, as thepremise for his projection of lost profits. We agree that Stapleford’s expert testimony lacked the required factualbasis for projecting Dr. Kanaga’s claimed lost earnings. Stapleford was retainedbefore trial to analyze the gross and net income from Dr. Kanaga’s practicefrom 1993 to 1997. He noted that she experienced a significant decrease inincome in 1992 and 1993 and assumed that the reduction was attributable to thedisputed article and to no other cause. Using net income figures provided byDr. Kanaga’s husband,
[FOOTNOTE 5] Stapleford prepared a chart comparing Dr. Kanaga’s netincome with the “Average OB/GYN” practitioners on a national level. Thischart, later introduced into evidence, is attached as an Exhibit to this opinion.Stapleford observed that “Dr. Kanaga’s earnings went up, net and gross, at arate that was almost double the rate of the average OB/GYN in the country overthe time period 1982 through 1991 … net earnings, 64 percent above and grossearnings, 37 percent above.” Extrapolating from that data, Stapleford calculatedthe total income loss from 1992 to assumed retirement ages of 60, 62 and 65.Future losses were discounted to present value at the rate of six percent. Inmaking his calculations of past and future earnings losses, Stapleford assumedthat the newspaper article was the “cause of the decline” and that the past rateof decline would not dissipate through the remaining years of Dr. Kanaga’swork life. In short, his projections of future wage loss assumed that Dr.Kanaga’s earnings pattern would never recover from the effect of the libel.
[FOOTNOTE 6] Defendants twice filed motions in limine with respect to Stapleford’sproposed testimony. Both motions were denied. Just prior to his testimony, thedefendants renewed their objection to Stapleford’s use of assumptions that wereunsupported by the evidence. They also objected on the basis of hearsay to theuse of dollar figures that were not in evidence. These objections were assertedpost-trial in motions for a new trial and preserved for appeal. The SuperiorCourt consistently ruled that the information upon which Stapleford relied was”the kind of information [upon] which experts in this field do rely” underD.R.E. 703 and permitted the testimony exemplified by the earnings chart. On appeal, Gannett renews those objections directed to Stapleford’s trialtestimony. It argues that the jury’s undifferented damages for income lossattributable to the libel was based on a “before/after” calculation of incomepremised on unoffered and unadmitted income data. Dr. Kanaga, whileconceding that the Schedule Cs were never actually admitted into evidence,claims they were nevertheless clearly admissible and would have been admittedif offered. She also asserts that the defendants were not prejudiced by thistechnical deficiency because they had ample opportunity, both during discovery.27and at trial, to review, cross-examine and rebut the earnings data relied upon byStapleford. The admissibility of the underlying data relied upon by Stapleford turnson an interpretation of D.R.E. 703. Under that Rule: [t]he facts or data in the particular case upon which an expert basesan opinion or inference may be those perceived by or made knownto him at or before the hearing. If of a type reasonably relied uponby experts in the particular field in forming opinions or inferencesupon the subject, the facts or data need not be admissible inevidence. To what extent an expert witness may rely on material facts not directly inevidence but assumed is an issue unresolved under D.R.E. 703. Further, thereis a split of authority in the interpretation of Federal Rule of Evidence 703,which is identical to D.R.E 703. A majority of courts facing the issue take theposition that while the “inadmissible data” relied upon by the experts in formingtheir opinion is admissible to explain their reasoning, that information is notadmissible as substantive evidence to prove the truth of the matters therein. See,e.g., United States v. 0.59 Acres of Land, 9th Cir., 109 F.3d 1493, 1496-97(1997); State v. Recor, Vt. Super., 549 A.2d 1382, 1388 (1988) (interpretingan identical Vermont Rule of Evidence). Rose Hall, Ltd. v. Chase ManhattanOverseas Banking Corp., D.Del., 576 F.Supp. 107, 158 (1983); but see In reArt Shirt Ltd., Inc., E.D. Pa., 93 B.R. 333, 340 (1988) (permitting testimonyof expert to serve as substantive evidence of insolvency notwithstandingunderlying report not being admitted into evidence.) While an expert is afforded latitude under Rule 703 to incorporate into themethodology source material normally relied upon in the expert’s field, the useof specific contested data poses a particular risk of circumvention of hearsayrestrictions. As one commentator notes: Although the Federal Rules of Evidence provide many exceptionsto Rule 802′s general prohibition of hearsay, Rule 703 is not suchan exception. The danger exists, however, that Rule 703 can beused as a “back door” hearsay exception – a crafty litigant couldgive hearsay to its expert for the purpose of having the expert referto it as a basis for the expert’s opinion. The jury may welldisregard any instruction that it consider the hearsay only forevaluating the expert’s basis and not as substantive evidence.David J. Capra, The Daubert Puzzle, 33 Ga. L. Rev. 699, 775 (1998).
[FOOTNOTE 7] We recognize that Rule 703′s “reasonably relied upon by experts in theparticular field” language is broad and arguably ambiguous. But, at a minimum,where a timely objection is made on hearsay grounds, the trial judge mustdetermine the admissibility of the underlying data. A reliability analysis underRule 703 is not a substitute for a hearsay ruling or a balancing exercise underRule 403.
[FOOTNOTE 8] See In Re Paoli R.R. Litig., 3d Cir., 35 F.3d 717, 747-750 (1994). Indeed, it is presently proposed that a balancing requirement be incorporatedinto Rule 703 to insure against “back-door” hearsay.
[FOOTNOTE 9] It is no answer that the disclosure of the contested data during discoveryeliminated the risk of surprise at trial. Here, the defendants filed numerousobjections to the use of the underlying data and the trial court was not free toadmit such data simply by a literal application of Rule 703. Nor wasStapleford’s use of unadmitted earnings data a mere technical deficiency. Dr.Kanaga relied upon two witnesses to provide a pattern of earnings against whichto measure the effect of the libel from the time of its publication in 1992 to theend of her life work expectancy. D’Amato’s testimony, proffered originally ascausation evidence, consisted essentially of a discussion of Dr. Kanaga’s earningtrends in comparison with other unidentified medical practitioners. D’Amato’smere identification of the Schedule Cs did not render them substantive evidenceeither for his use or, later, by Stapleford.
[FOOTNOTE 10] In sum, D’Amato was not permittedto testify as to the specifics of Dr. Kanaga’s earning history and Stapleforddisclaimed any direct knowledge of it. The result was that the earnings datacame into evidence without the benefit of cross-examination of any fact witnessas to its accuracy. The earnings data formed the premise for Stapleford’s incomeloss projections. Moreover, the projection of future loss income was, in itself,highly speculative since it assumed that Dr. Kanaga’s practice would neverrecover from the effect of the libel so long as she continued to practice herspeciality. Once liability is established, a plaintiff seeking recovery ofdamages in a tort action must establish causation and consequential damage.While the plaintiff is entitled to the benefit of reasonable inferences fromestablished facts, the jury cannot supply any omission by speculation orconjecture. See Henne v. Balick, Del. Supr., 146 A.2d 394, 396 (1958). Thenature and extent of future consequences must be established with “reasonableprobability” or “there can be no recovery for that item of damages.” Drozdovv. Webster, Del. Supr., 345 A.2d 895, 896 (1975). Given the magnitude of the jury’s award in this case, it is obvious that itaccepted the opinion of the only witness who assigned a dollar amount to Dr.Kanaga’s claim for lost earnings. The record demonstrates that Dr. Kanagasuffered some drop in earnings following the publication of the article, but thejury rendered the compensatory damages in one lump sum, presumablyrepresenting damages for humiliation and loss of professional income. We are,thus, unable to segment that portion of the award attributed to Dr. Kanaga’s pastand future earnings. Because the evidence directed to that portion of the awardfailed to establish her actual injury with reasonable probability under requiredstandards for admissibility, the damages award must be reversed. Due to the fact that our reversal of the damages portion of the jury verdictin this case may occasion a retrial as to that portion of the damages awardassessed against Gannett, we offer the following additional observations.D.R.E. 705 provides a procedural framework for identifying and dealing withdisputes over an expert’s use of inadmissible factual information.
[FOOTNOTE 11] UnderD.R.E. 705, if there is an objection to the proposed opinion testimony of anexpert witness, the expert must disclose the facts and data upon which he or sherelies. If the offering party, with the court’s approval, agrees to introduce thenecessary data later but fails to do so, the objector may move to strike theexpert’s opinion just as it would have moved to strike the answer to ahypothetical question if the assumed facts were never introduced. Although avoir dire of Stapleford occurred here, the trial court admitted the underlying datawithout focusing on its hearsay nature and, thus, there was no legal basis for amotion to strike at the conclusion of the expert’s testimony. We recognize that the trial judge was acting against the background ofwhat had occurred during discovery in the course of which he made severalrulings. The trial judge apparently believed that it was sufficient that thedefendants could have cross-examined Stapleford regarding the accuracy of theearnings data during deposition and at trial. But discovery practices are not asubstitute for the proper admission of evidence at trial where the rules ofevidence apply with greater force. The participation of a jury requires rigorousadherence to standards designed to prevent the receipt of inadmissible evidence. Finally, we note that expert testimony improperly admitted is not curedthrough jury instructions that authorize the disregarding of expert opinions if thejury rejects the factual basis. Inadmissible facts that form the basis for anexpert’s opinion are not simply elements of proof subject to the jury’s”weighing” option. IV The reversal of the compensatory damages award requires that weconsider Dr. Kanaga’s cross-appeal from the Superior Court’s refusal to permitevidence of Gannett’s financial condition in connection with the punitivedamages award. There must be a retrial on punitive damages, in any event,however, because of the requirement of proportionality between compensatorydamages accompanied by an award of punitive damages. See Jardel Co., Inc.v. Hughes, Del. Supr., 523 A.2d 518, 528 n.6 (1987). In a pretrial ruling, the Superior Court held that Gannett did not have toproduce evidence of its financial condition, because the financial condition of a.34defendant was irrelevant to an award of punitive damages in actions fordefamation. The court relied upon two Superior Court decisions which, while”old,” were considered deserving of adherence in the absence of a definitiveruling by this Court. See Naylor v. Ponder, Del. Super., 41 A. 88, 89 (1895)(the jury “may take into consideration the position, rank, and influence of thedefendant in the community. But … not … his pecuniary condition.”);MacDonough v. A.S. Beck Shoe Corp., Del. Super., 15 A.2d 436, 438 (1940)(following the holding in Naylor but noting that the great weight of authority isin support of the rule “that the pecuniary circumstances of the defendant in anaction for defamation are admissible…”). In the context of a medical malpractice action, this Court has held that”[e]vidence of the defendant’s wealth is admissible to enable the jury to assessa penalty which will appropriately punish and deter.” Strauss v. Biggs, DelSupr., 525 A.2d 992, 1000 (1987). Further in Jardel v. Hughes, we noted that”the defendant’s financial well being” is one of the factors to be considered bythe jury in assessing punitive damages. 523 A.2d at 528 n.6. The “vastmajority of courts which have considered the issue of whether the trier of factmay … consider the wealth of the defendant in fashioning a punitive award havedetermined that the defendant’s wealth is an appropriate consideration becausethe degree of punishment or deterrence is to some extent proportionate to the.35means of the wrongdoer.” Annotation, Punitive Damages: Relationship toDefendant’s Wealth as Factor in Determining Propriety of Award, 87 A.L.R.4th141, 151 (1991). In our view, there is no logical basis for distinguishing between punitivedamages in defamation cases and other tort causes of action. The relevancy ofa defendant’s wealth is the same. Any concern that the imposition of punitivedamages may be excessively applied against a wealthy defendant is alleviated bythe trial court’s duty to insure that such damages have the required factualshowing of recklessness and that any award of punitive damages beproportionate to the award of compensatory damages. See Jardel, 523 A.2d at528-31. V Upon a complete review of the record, we conclude that the jury’sdetermination of liability for defamation is fully supported by the evidence andthe law of the case. Accordingly, the liability portion of the judgment isAFFIRMED. The award of actual damages, however, is not supported byadmissible evidence and must be REVERSED. The punitive damages award isalso REVERSED because of the exclusion of evidence regarding the defendants’wealth. The matter is REMANDED for a new trial limited to compensatory andpunitive damages as to the media defendants. [DISSENT OMITTED] :::FOOTNOTES:::
FN1 Kane played this recording for Harriman but thereafter destroyed it. The jury was instructed that there was evidence from which they could conclude that Kane intentionally or recklessly destroyed this taped conversation, and, if they so concluded, they could draw an unfavorable inference from that conduct.
FN2 The amici in this case are Advance Publications, Inc., The Associated Press, Dow Jones Company, Inc., Maryland, Delaware, District of Columbia Press Association, The New York Times Company, The Philadelphia Inquirer, Time Inc. and The Washington Post.
FN3 The Superior Court’s damage instruction included the following: If you find in favor of Doctor Kanaga and, in so doing, have determined that she has proven by a preponderance of the evidence that she incurred actual damage caused by the publication of the article by Ms.Harriman and The News Journal, you should award as her damages an amount which will reasonably compensate her for her damages. In determining such damages, you shall consider the following. Any impairment of Doctor Kanaga’s reputation, any personal humiliation and any mental anguish and suffering incurred by her as a result of the defendants’ statements. Insofar as they have been proved by a preponderance of the evidence and insofar as they were caused by the defendants’ article, past and future loss of income incurred by Doctor Kanaga. As to future lostincome, if any, your award must be the future lost income reduced to present value. In determining how much Doctor Kanaga’s reputation has been harmed you must consider the reputation that she enjoyed before the defamatory publication as compared to the reputation that she enjoyed after the publication and whether that reputation has actually been diminished since the publication. You also may – you may also consider the mannerin which the defamatory matter was distributed and the extent of its circulation in Doctor Kanaga’s community and whether those who read the article understood it to refer to her. In the absence of contrary evidence, the law presumes that Doctor Kanaga, at the time any defamatory statements were made, enjoyed a good name and reputation.
FN4 Schedule C is the income/expense portion of the Individual Income Tax Return 4(Form 1040) required by the Internal Revenue Service for reporting profit or loss from abusiness. The Schedule Cs reviewed by D’Amato were unusual in that they reflected notonly Dr. Kanaga’s medical practice but her husband’s law practice which he conductedfrom the same location.
FN5 Stapleford also examined Dr. Kanaga’s Schedule Cs for the same years, but had already made his projections based on comparable data supplied by Dr. Kanaga’s husband.
FN6 When cross-examined about the basis for projecting the income differential into the future, Stapleford testified: Q. You were simply told to assume that the effects of the articlewould continue unabated forever? A. Yes. Q. And that Miss Harriman’s words would be resonating into eternity? A. Well, not eternity. Work life expectancy. But I did ask ifthe effects of the article are diminishing, and I asked Mr.Kanaga, and he said no.
FN7 In M.G. Bancorporation, Inc. v. LeBeau, Del. Supr., 737 A.2d 513, 521-22 (1999), this Court applied the United States Supreme Court’s interpretation of F.R.E. 702 as set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-90 (1993), to D.R.E. 702.
FN8 Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusionor waste of time. Although relevant, evidence may be excluded if its probative valueis substantially outweighed by the danger of unfair prejudice, confusion ofthe issues or misleading the jury, or by considerations of undue delay, wasteof time or needless presentation of cumulative evidence.
FN9 The Federal Advisory Committee on Evidence and the Standing Committee on Rules of Practice and Procedure of the U. S. Judicial Conference has proposed the additionof the following language to Rule 703: Facts or data that are otherwise inadmissible shall not be disclosed to thejury by the proponent of the opinion or inference unless the courtdetermines that the probative value in assisting the jury to evaluate theexpert’s opinion substantially outweighs their prejudicial effect. Report of Committee
FN10 Kanaga’s counsel at oral argument suggested that marking documentary exhibitsfor identification but never offering them is the usual practice in the Superior Court. Ifsuch a practice exists, it is fraught with difficulty, as this case attests, particularly if a partyseeks to rely upon the substantive value of that evidence as record support for a contestedelement of proof.
FN11 D.R.E. 705, which is more exacting in its disclosure requirements than its counterpart under the Federal Rules of Evidence, provides:Rule 705. Disclosure of facts or data underlying expert opinion. (a) Disclosure of facts or data underlying expert opinion. The expertmay testify in terms of opinion or inference, provided he first identifies thefacts and data upon which he bases his opinion and his reasons for theopinion, unless the court requires otherwise. The expert may in any eventbe required to disclose the underlying facts or data on cross-examination.(b) Objection. An adverse party may object to the testimony of anexpert on the ground that he does not have a sufficient basis for expressingan opinion. He may, before the witness gives his opinion, be allowed toconduct a voir dire examination directed to the underlying facts or data onwhich the opinion is based.
Gannett Co., Inc., et al. v. Kanaga Supreme Court of the State of Delaware GANNETT CO., INC., t/a THE NEWS JOURNAL COMPANY, and JANE HARRIMAN, Defendants Below, Appellants/Cross-Appellees, MARGO KANAGA, M.D., Plaintiff Below, Appellee/Cross-Appellant. No. 352, 1998 Submitted: November 23, 1999 Decided: May 3, 2000 Before: VEASEY, Chief Justice, WALSH, HOLLAND, and HARTNETT, Justices and CHANDLER, Chancellor. Appeal From: Superior Court Counsel for Appellant: Mason E. Turner, Jr., Robert C. Bernius, Esquire, James S. Green Counsel for Appellee: Charles S. Crompton, Jr., Gail Johnston, Ralph Huber, Richard N. Winfield, Margaret Blair Soyster, David Kohler, Stuart Karle, Carol D. Melamed, George Freeman, Katherine Hatton, Robin Bierstedt, and Mary Ann Werner
