Talk show penalized $150,000

Plaintiff to appeal case

Posted: Friday, February 08, 2002

A jury on Thursday afternoon awarded Juneau's Karen Carpenter $150,000 to punish a California radio-show production company for destroying a tape she wanted as evidence in a lawsuit.

But if lawsuits are intended to settle disputes, this one isn't over yet.

One of Carpenter's attorneys, Ray Brown, said he would appeal the case to the Alaska Supreme Court. And Leslie Longenbaugh, attorney for the Los Angeles-area production company Westwood One, asked Superior Court Judge Patricia Collins on Thursday to overturn the jury's verdict that the company intentionally destroyed evidence. Collins said she would issue a written response.

Carpenter had charged that demeaning and sexually oriented comments about her by nationally syndicated talk-show host Tom Leykis on July 24, 1998, 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 they intentionally inflicted emotional distress on Carpenter and violated her privacy by publicly disclosing private information about her.

But Collins' instructions to jurors limited them to considering only speech on the broadcast that 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 Thursday in an interview.

"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 objected to media reports that the jury had "cleared" Leykis. He cited the jury's response to a written question from Collins that Leykis' conduct had been "outrageous."

"It was clear they wanted to punish Tom Leykis personally," Brown said, but Carpenter's one successful claim, destruction of evidence, was made only against Westwood One. Collins said Leykis couldn't be subject to punitive damages for that claim.

Brown said the appeal would not include the punitive-damage award, although he said it was low and wouldn't deter Westwood One from similar conduct in the future.

But the appeal might question the jury instructions on free speech and how to define private information, and Collins' earlier decision to dismiss several other of Carpenter's claims, including defamation.

The jury was fair in its deliberations, said Thom Ferro, an executive with Westwood One, in an interview Thursday. "I felt that they upheld the First Amendment," he said.

Brown told the jury Thursday that destroying evidence was perhaps the most serious of Carpenter's claims because it affects the "core of the justice system."

Brown asked jurors to consider awarding damages equal 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 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.

Longenbaugh 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.

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 Thursday, "and it certainly will have some impact on our reputation. I can't say how large."

Ferro apologized to Carpenter from the stand 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 the company's legal office in New York. Brown has said the evidence shows 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 is unknown what happened to Carpenter's request for the tape.

It's unclear how much money Carpenter will end up with from the punitive-damages award. The figure will go up with interest earned since 1998, but presumably it will be reduced by legal fees and costs from her own attorneys and possible claims from Leykis for his legal expenses. The state also takes half of punitive damages, which Brown said was unconstitutional and could be challenged.

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