The Rosie Trial | Day Eight

'Rosie' Trial Judge Says No Damages Proved

Tells Courtroom 'We Were Just Dealing With Bragging Rights Here'

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NEW YORK ( -- In a bombshell announcement at the Gruner & Jahr USA Publishing vs. Rosie O'Donnell trial this morning, Judge Ira Gammerman told the courtroom that "neither side, leaving aside the issue of attorneys' fees, has proved any damages."

Photo: AP
'I will not continue the war,' said Rosie O'Donnell after Judge Gammerman's remarks ended eight days of brutal courtroom battle.

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The judge expressed his view from the bench shortly after the final testimony in the case concluded this morning.

'Bragging rights'
Judge Gammerman told the courtroom, "No side had provided sufficient evidence that this magazine would have been successful." He said, "We were just dealing with bragging rights here.

"My impression is that the lawsuit was started as a sort of carrying on of this back and forth public dispute that was tried apparently in the newspapers and for some reason or other the plaintiff decided to try it in a courtroom as well," the judge said.

No ruling yet
Judge Gammerman has yet to rule on the case, and written summations won't be submitted until Dec. 17. But observers read it as an indication that, at best, G&J may only recoup what the judge termed "nominal" damages in the event it prevails.

Immediately after the Judge Gammerman concluded his comments about damages, Ms. O'Donnell's brother, NBC executive Ed O'Donnell, sat quietly in a courtroom pew. "I'm trying to figure it out," he said.

Ms. O'Donnell's attorney Lorna Schofield characterized the judge's words as an indication of victory. She said G&J "started this fight" but that the judge "said it was an ill-conceived lawsuit."

In comments that appeared to rule out any appeal, Ms. O'Donnell said, "I will not continue the war. I never wanted to be in court."

Exiting the courtroom, G&J CEO Dan Brewster would only say that he would "wait until [his] attorneys have had a chance to confer before commenting" on the development. However, when asked if there would be changes at G&J in the wake of the trial, he said "no" several times.

'It ain't over'
As reporters clumped around attorneys and other key figures after Judge Gammerman spoke, G&J's lead attorney, Martin Hyman, said, "It ain't over till it's over. ... There has been no ruling." He said the company would press on to recover damages associated with the shutdown of Rosie magazine. One individual involved said the value of those damages, combined with other G&J expenses still being sought, topped out around $12.4 million.

Mr. Hyman also said that today's cross-examination of Ms. O'Donnell's last witness, David Williams of Deloitte & Touche, "made clear there was no evidence of financial manipulation, and no evidence of the financial wrongdoing alleged."

The day began with Ms. O'Donnell's attorney Matthew Fishbein withdrawing a claim Mr. Williams had made on Monday, that G&J had not included $40,766 of Rosie magazine's expenses in its financials. Withdrawing that claim was significant because, according to even Mr. Williams' figuring, the omission meant the magazine's red ink for the fiscal year ending June 30, 2002, did not exceed a loss threshold that would have enabled either party to shut the magazine down.

$8 million in attorney's fees
Kelli Carpenter, Ms. O'Donnell's partner, said she was "thrilled" with the judge's remarks. She expressed hope that Ms. O'Donnell would be able to recover attorney fees, which Ms. O'Donnell has estimated at $8 million.

Ms. O'Donnell, seeming noticeably less cheered by the day's developments than others around her, gave a brief statement on the courthouse steps but took no questions from the reporters and cameramen thronging her.

"The story of this case is not who won or lost," she said, but "how many times peace was offered and war was chosen."

But Ms. O'Donnell's refusal to sign confidentiality and non-disparagement clauses scuttled a potential settlement last week, according to people familiar with the discussions. Her spokeswoman declined to comment on that matter.

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