On Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Civil Action No. 01-cv-00145. (Honorable Cynthia M. Rufe).
The opinion of the court was delivered by: Scirica, Chief Judge.
Before: SCIRICA, Chief Judge, ALITO and GARTH, Circuit Judges
Plaintiff/Appellant Franklin Prescriptions challenges the jury instructions in this defamation action under Pennsylvania law. At issue is whether plaintiff properly objected to the court's jury charge under Federal Rule of Civil Procedure 51, and whether plaintiff was entitled to an instruction on presumed damages and defamation per se. The District Court denied Franklin Prescriptions' motion for a new trial. We will affirm.
Franklin Prescriptions, Inc., is a small pharmacy in Philadelphia specializing in fertility medications. In 1996, the company began marketing its niche products on the internet via an information-only website. The website allows Franklin Prescriptions' customers to survey available products and pricing, but does not enable the online purchase of prescription drugs. Franklin Prescriptions only accepts drug orders by way of mail, telephone, fax, or in person, and only then with a doctor's prescription.
On October 25, 2000, the New York Times published an article entitled, "A Web Bazaar Turns into a Pharmaceutical Free For All." The article addressed the risks of purchasing fertility drugs on the internet. It described "unscrupulous" and "cloak and dagger" websites that process online orders for controlled drugs without prescriptions. Franklin Prescriptions was not mentioned in the text, but the article contained a graphic insert with an image of the Franklin Prescriptions website that identified Franklin Prescriptions by name. The insert was placed next to a side-bar labeled "Safety Tips for Buying EMedicines" that warned readers to "[a]void sites that fail or refuse to provide a United States address and phone number." Although Franklin Prescriptions' website did, in fact, list the company's address and telephone number, the partial image reproduced for the article omitted this information. Significantly, the published image also omitted part of the website that stated in bold-face language: "Must have doctor's prescription from a physician licensed in the United States to purchase Viagra."
Franklin Prescriptions sued for defamation. The District Court denied the New York Times' motion for summary judgment, finding a genuine issue of material fact on whether the newspaper published the article with reckless disregard for its falsity. The case went to trial, and the jury found the article false and defamatory. But it awarded no damages, finding Franklin Prescriptions suffered no actual harm caused by the publication.
Before the jury was charged, Franklin Prescriptions submitted proposed jury instructions on presumed damages and defamation per se. Neither proposed instruction was given to the jury. The parties dispute whether Franklin Prescriptions objected to the lack of a presumed damages instruction. Franklin Prescriptions submits that it did so-off the record-at an in camera charging conference held in chambers. The New York Times disputes this contention, maintaining that the presumed damages instruction was not discussed at the chambers charging conference. In its Memorandum Opinion and Order, the District Court rejected Franklin Prescriptions' assertion, stating that "the Court terminated the conference before addressing Plaintiff's presumed damages instruction."
Franklin Prescriptions, Inc. v. The New York Times Co., 2004 WL 1770296, at *5 (E.D. Pa. Aug. 5, 2004). Whether or not an objection was raised at the charging conference, it is undisputed that Franklin Prescriptions never entered an on-the-record objection to the lack of a presumed damages instruction.
In denying the motion for a new trial, the District Court held that Franklin Prescriptions failed to object to the lack of a presumed damages instruction under Fed. R. Civ. P. 51(c)(1), which provides that a party objecting to jury instructions "must do so on the record." Additionally, the District Court held that under Pennsylvania law Franklin Prescriptions was not ...