By Eriq Gardner, The Hollywood Reporter
FreemantleMedia loses a bid for victory at an appeals court against Brandi Cochran
A California appeals court will allow a jury to decide whether Brandi Cochran, former model on The Price Is Right, was discriminated against after becoming pregnant. In an opinion released on Thursday, the appeals court has rejected FreemantleMedia’s attempt at a judgment notwithstanding the verdict and has also pointed to a possible limitation in the way that television producers have been increasingly using the First Amendment to shield themselves from employment claims.
In November, 2012, Cochran appeared to have landed a landmark victory after a jury came back and awarded her $7.7 million in her lawsuit. The verdict happened after a trial where Cochran presented her story of taking leave when she got pregnant only to find that a job was not awaiting her upon her return. Cochran went into premature labor, one of the twins she was carrying died during birth, and when she was finally ready to return to her old job, she was informed that her services were no longer required. Cochran sued in 2010 for discrimination and introduced evidence that show producers harbored pregnancy-based animus, made unflattering remarks about her weight and might have drawn the line at having a model with a “bad baby story.”
FreemantleMedia and The Price is Right Productions, Inc. defended itself on many grounds including another explanation why Cochran wasn’t rehired. The show had evolved from the Bob Barker era to the Drew Carey era, and producers testified that they now wanted the models to interact with the show’s host and contestants. Cochran might have survived under the prior format, but one of the show’s producers testified that while Cochran was a “good model,” he would have fired Cochran when Carey became host.
The reason why the trial judge wiped out the $7.7 million verdict was because of bad jury instructions. Originally, the judge said that the jury must find discriminatory animus to be a “motivating factor,” but just before the trial happened, the California Supreme Court in another case clarified that it must be a “substantial motivating factor.”
The trial judge granted a motion for a new trial, but FreemantleMedia wanted victory based on the evidence presented. The judge denied that larger ambition, which partly led to the appeal.
In his opinion on Thursday, California appeals court justice Laurence Rubin affirms the trial court’s decision.
“Despite FremantleMedia’s contention that its failure to rehire Cochran was a nondiscriminatory casting choice aimed at making the show the best it could be and that rehiring Cochran would not have furthered that goal, there was sufficient evidence to prove pregnancy discrimination,” states the opinion.
Freemantle also can’t shield itself from punitive damages.
“Here, whether it was by the ‘bad baby show’ testimony or otherwise, Cochran persuaded the jury that FremantleMedia’s response to her troubled pregnancy and her daughter’s significant health problems involved ‘malice, oppression, and/or fraud.’ Upon retrial it will be for the trier of fact to determine, in the first instance, whether the evidence supports punitive damages. But we may not at this juncture remove from the trier of fact a decision it has not yet made.”
Perhaps as interesting and impactful as the possibility of pregnancy discrimination amounting to millions of dollars in damages is the discussion in the opinion about whether FremantleMedia can use the First Amendment to save itself from the claims. In past lawsuits, producers have leaned on free speech to support nearly everything going into a show. Producers of the NBC show Friends once prevailed over claims of sexual harassment over jokes told in the writers’ room because it was part of the creative process. Producers of ABC’s The Bachelor were able to escape a racial discrimination lawsuit because as a federal judge noted, “casting decisions are part and parcel of the Shows’ creative content.”
What has begun to look like a hard and fast rule, though, might not be as rock solid as many lawyers believe. While yesterday’s decision by a California appeals court is at the moment unpublished, which means that it can’t be cited as precedent, it does offer some hope for future plaintiffs.
Just days after Cochran’s trial started, the discrimination lawsuit against The Bachelor was tossed. FremantleMedia’s lawyers then made a motion to amend its answer to include the First Amendment. The trial judge rejected it.
“The record before us does not entitle FremantleMedia to relief based on its First Amendment defense,” writes Justice Rubin. “FremantleMedia relies on the First Amendment as an affirmative defense. As an affirmative defense, FremantleMedia had the burden to prove it. Thus, it was FremantleMedia’s burden at trial to establish that its right to free speech trumped Cochran’s right to be free from discrimination.”
Here’s where it could get dicey for TV producers. The California appeals court appears to want FremantleMedia to get specific.
“FremantleMedia cannot argue that its failure to rehire Cochran conveyed a protected First Amendment message unless it identifies what its message was,” continues Justice Rubin. “FremantleMedia dismisses out of hand a sad or bad baby message, but suggests no other message to take its place… On retrial, if FremantleMedia properly pleads such a defense, the parties will have an opportunity to fully litigate the issue.”
Below is the full opinion, which details a lot of the evidence brought at trial and advises the trial judge on future instructions in a tricky case that also entails depression possibly associated with the pregnancy complications. Cochran’s own appeal over instructions was also rejected, meaning that unless a settlement happens, a new trial will soon take place.