Section 15 Mitigation of Damages Through Evidence of Other Negative Publicity

• Library: Damages 2012

A plaintiff’s reputational damages may be mitigated by evidence of other negative publicity.

In Kenney v. Wal‑Mart Stores, Inc., 100 S.W.3d 809 (Mo. banc 2003), the Supreme Court said that “[i]f there is evidence that some of the harm might have been caused by statements that are truthful or otherwise non-actionable, the jury should be instructed that the defendant is liable only for the portion of the loss allocable to the actionable statement.” Id. at 818 (quoting David A. Anderson, Reputation, Compensation and Proof, 25 Wm. & Mary L. Rev. 747, 773 (1984)) (citing Taylor v. Chapman, 927 S.W.2d 542, 544 (Mo. App. E.D. 1996)).

Courts have allowed evidence of other negative publicity to rebut
the plaintiff’s claim of reputational injury. See, e.g., Marcone...