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Penn State Appeals $7.3 Million Verdict In Mike McQueary Case

Penn State filed a motion for post trial relief today “in the form of judgment notwithstanding the verdict, a new trial, or remittitur.” Basically, the university is requesting a new judgment without consideration of the previous verdict, a new trial altogether, or for the judge to reduce the amount of damages decided upon in the jury verdict.

A jury awarded Mike McQueary $7.3 million in damages from Penn State nearly two weeks ago following the conclusion of the McQueary v. Penn State defamation trial. This verdict included $1.15 million on defamation and misrepresentation claims and $5 million in punitive damages on the misrepresentation claim. Judge Thomas Gavin still hasn’t ruled on McQueary’s whistleblower claims against the university.

According to court documents, the motion is based on:

A. The Court’s Failure to Grant the University’s Requests for a Stay Pending the Outcome of The Criminal Litigation against Tim Curley and Gary Schultz Constitutes Reversible Error

Penn State asked twice for the McQueary trial to be postponed until after the trials in criminal cases involving former administrators Tim Curley and Gary Schultz. The court denied these requests, so now Penn State says the university “suffered substantial prejudice during the trial of this matter.”

B. The Court Erred In Denying the University’s Motion for Compulsory Non-Suit on Plaintiff’s Misrepresentation Claim

Penn State says McQueary can’t “viably claim that Curley or Schultz intentionally made any misrepresentations to induce him to not report the matter to law enforcement or child welfare agencies” in the misrepresentation claim. Court filings from Penn State also say the misrepresentation claim “fails as a matter of law and the University is entitled to a judgment in its favor notwithstanding the verdict.” All things considered, Penn State says the jury verdict is wrong about the misrepresentation claims.

C. The Court’s Jury Instruction that the Jury May Make an Adverse Inference against the University Constitutes Reversible Error

Penn State says it was wrong for the Court to instruct the jury they “may make an adverse inference against it based upon the assertion of the Fifth Amendment by non-party witnesses, Curley and Schultz.” Because Curley and Schultz weren’t direct parties in the trial, Penn State claims this “adverse influence” based on pleading the Fifth Amendment does not apply and says the error should warrant a new trial.

D. The Court’s Jury Instruction that Spanier, Schultz, and/or Curley were Mandated Reporters as a Matter of Law Constitutes Reversible Error.

Penn State says no evidence supported former administrators Graham Spanier, Gary Schultz, and Tim Curley were in fact mandated reporters for child abuse allegations. The Court instructed the jury on mandated reporting laws, but Penn State said this was irrelevant to the case at hand and should order a new judgment notwithstanding the verdict or a new trial on the misrepresentation and defamation claims.

E. The Court Erred By Refusing to Find that The Allegedly Defamatory Statements were Opinions and Do Not Imply any Knowledge of Underlying Facts.

Penn State claims instruction on defamation laws given to the jury by the Court were incorrect and deviated from the standard instruction, warranting a new judgment notwithstanding the verdict or a new trial.

F. The Court Erred When It Declined to Characterize Plaintiff as a Public Figure or Limited-Purpose Public Figure, and, as such, the University was Irreparably Prejudiced by the Court’s Decision not to Instruct the Jury on the Attendant Higher Burden of Proof.

According to court filings by Penn State, when a plaintiff is considered a public figure, “he or she must prove that the offending statement was made with actual malice.” Penn State says McQueary should qualify as a public figure, but because he was not classified as such by the Court, the university “was prejudiced by the Court’s ruling that the heightened actual malice standard did not apply to the defamation claim.” The university seeks a new judgment notwithstanding the verdict on the defamation claim or a new trial.

G. The Court Erred When It Declined to Instruct the Jury that the Allegedly Defamatory Statement Concerned a Matter of Public Concern, and, As Such, Plaintiff Must Show that the Statement was Materially False.

Penn State claims McQueary “could not establish that President Spanier’s confidence in Curley and Schultz was not properly founded” without hearing testimony from Curley and Schultz. Attorneys say the university was “prejudiced by the Court’s ruling that the defamatory statement was not a matter of public concern,” because McQueary allegedly could not have met the appropriate burden of proof if it was considered a matter of public concern. The university again seeks a new judgment notwithstanding the verdict or a new trial.

Court filings also provide further reasoning from Penn State for a judgment notwithstanding the verdict, a new trial, and/or a remittitur. A remittitur is a ruling by a judge (usually upon motion to reduce or throw out a jury verdict) lowering the amount of damages granted by a jury. Usually, this is because the amount awarded exceeded the amount demanded.

  • A. The Court Failed to Properly Instruct the Jury that they Could Not Duplicate Damages and the Jury’s Award is Speculative, At Best,
  • B. Plaintiff Failed to Show Conduct That Justified The Award of Punitive Damages.

A motion strictly for a new trial was also filed based on the following:

  • A. The Court Prejudiced the University by Refusing to Permit the University to Offer Media Accounts that Cast Plaintiff in a Negative Light in Order to Refute Any Claim that the University’s Actions Harmed Plaintiff’s Reputation.
  • B. The Court erred when it Held that It Would Take an Adverse Inference against the University for Asserting the Attorney-Client Privilege.
  • C. The Court’s Refusal to Present Special Interrogatories to the Jury Constitutes Reversible Error.
  • D. The Trial Court Committed Reversible Error by Acting as an Advocate.

About the Author

Elissa Hill

Elissa is a senior public relations major and the managing editor of Onward State. She is from Punxsutawney, PA [insert corny Bill Murray joke here] and considers herself an expert on all things ice cream. Send questions and comments via e-mail ([email protected]) and follow her on Twitter (@ElissaKHill) for more corny jokes.



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