A Juneau jury this afternoon awarded Karen Carpenter $150,000 in punitive damages from Westwood One, the Los Angeles-area company that produces the Tom Leykis Show.
The jury on Tuesday determined that Westwood One intentionally destroyed or concealed a tape of the disputed July 24, 1998, broadcast that was wanted as evidence in Carpenter's civil lawsuit.
Carpenter had charged that demeaning and sexually oriented comments about her on the show, and calls and faxes to her home afterward, traumatized her and led to a serious emotional illness.
The jury cleared Leykis and Westwood One of claims that they intentionally inflicted emotional distress on Carpenter and violated her privacy by publicly disclosing private facts about her.
But one of Carpenter's attorneys, Ray Brown, said today he would appeal the case to the Alaska Supreme Court because of the judge's instructions to the jury regarding free speech.
The instructions by Juneau Superior Court Judge Patricia Collins limited the jury to considering only speech on the broadcast that they believed was intended to "provoke a hostile reaction where a danger of immediate violence existed"; or speech that disclosed facts about Carpenter that weren't publicly available and that were "highly offensive."
If a person "verbally sexually assaulted" someone on the job or in the street, it wouldn't be constitutionally protected speech, Brown said today.
"When you make your money out of denigrating women ... I don't think that was what our First Amendment was meant for," he said.
Brown said the appeal would not include the punitive-damage award for destroying evidence, although he said it was low and wouldn't deter Westwood One from similar conduct in the future.
The jury was fair in its deliberations, said Thom Ferro, an executive with Westwood One, after hearing the punitive-damages award.
"I felt that they upheld the First Amendment," he said.
Defense attorney Leslie Longenbaugh today asked Judge Collins to overturn the jury's verdict that Westwood One had intentionally destroyed evidence. Collins said she will issue a written response.
Brown, in his closing arguments this morning, told the jury that destroying evidence was perhaps the most serious of Carpenter's claims because it affects the "core of the justice system."
Brown didn't ask the jury for a specific amount of punitive damages. But he asked jurors to consider awarding damages equivalent to at least a week of the company's revenues in 1998. That would be about $6.9 million for the parent company, Westwood One Inc., or about $329,000 for its subsidiary Westwood One Radio, which produces the Tom Leykis Show.
Brown argued that the Leykis show was the goose that laid the golden egg for the company. The company destroyed the tape because it didn't want negative publicity from a lawsuit and the risk of other stations canceling the show because of the bad publicity, he said.
The Leykis show is heard by about 2 million people and is broadcast on about 60 radio stations nationwide, Westwood One officials have said. It has the most listeners for talk shows in its time slot in Los Angeles, Detroit, Dallas and Seattle. It is heard in Anchorage.
Brown submitted evidence that advertising revenues from the Leykis show make up about 20 percent of Westwood One Radio's revenues. And the subsidiary's revenues make up about 5 percent of the parent company's revenues.
Revenues to Westwood One Inc. from the Leykis show ranged from about $1.6 million to nearly $2 million a year from 1998 to 2001, according to a Westwood One official whose testimony was read in court today.
Westwood One's attorney Longenbaugh reminded the jury that revenues don't exclude the company's expenses and therefore don't represent profits. She didn't tell the jury what those profits were.
A corporate executive testified in a deposition read in court today that Westwood One Radio has not made a profit in recent years, even with the Leykis show.
Longenbaugh also argued that the lack of the tape from Westwood One didn't stop Carpenter from pursuing her lawsuit, so she wasn't harmed by not having the tape.
Carpenter did receive from another source a tape of the first two hours of the four-hour program, and it was heard as evidence in the trial. An employee of local station KJNO-AM found the tape in 2001, apparently after requesting in 1998 a tape from Westwood One for the station's records.
And Longenbaugh said the verdict of destroying evidence was itself a deterrent to the company. "The company takes the verdict seriously as a mark against it," she said.
"It certainly is negative," company executive Ferro agreed from the stand today, "and it certainly will have some impact on our reputation. I can't say how large."
Ferro apologized to Carpenter from the stand today and afterward in a private conversation.
"It is sad that our company was not able to produce that tape," Ferro testified. "It disheartens me. I'd like to apologize to Ms. Carpenter."
Ferro, who runs the company's Culver City, Calif., production studio, said he will take steps "so it will be very easy to produce a tape" if asked to in the future.
But Carpenter's attorney Brown said Ferro couldn't control what the company's legal office in New York did. Brown has said the evidence shows that the legal office knew of Carpenter's request for the tape and never turned it over.
The defense has said that the master tape either was taped over as a routine reuse of the tape, or that it was unclear what happened to Carpenter's request for the tape.
Eric Fry can be reached at firstname.lastname@example.org.
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