Not long after meeting Danny Gallagher, Kate Pavlovsky had some unflattering words for Gallagher, an aspiring birth attendant and photographer who advised lactating women on how to sell erotic photos and videos of themselves as a sideline to his fledgling business assisting pregnant women.

“This man is a predator and solicits women for nude photos and amateur porn involving pregnant and lactating women,” Pavlovsky wrote in a message on Gallagher’s Facebook page promoting his business as a doula, or birth attendant. “He should never be allowed in a birth room as it has been made clear he is very aroused by birth, pregnancy, and breastfeeding.”

A federal court jury in Hawaii this week found that these statements made by Pavlovsky “were true or substantially true” and denied Gallagher’s claims that she committed defamation by making the statements.

But in a twist providing a cautionary tale for people sharing information online, the jury reached a different conclusion concerning several other women who made similar statements about Gallagher in Facebook groups and elsewhere. The four doulas now face punitive damages totaling $52,000, ranging from $1,000 to $40,000 for each defendant.

The “Danny the Doula” Facebook page is no longer active but is included in court exhibits. Screenshot

The punitive damages are far more than the largely symbolic $1 in general damages the jury imposed on each of the doulas, but far less than the $5 million Gallagher originally sought.

Whether the four doulas will have to pay the punitive damages remains to be seen. U.S. District Court Judge Leslie Kobayashi has issued a 60-day stay on entering a final judgment, which could allow the two sides to work out a settlement. Among other things, the defendants could ask the judge to set the verdict aside or appeal it.

In the meantime, the case shows the risks people face when sharing information on platforms like Facebook, particularly information that could be considered damaging to a person’s reputation.

In Pavlovsky’s case, she had had firsthand experience with Gallagher discussing the possibility of selling erotic photos of herself while pregnant or lactating. The women found to have defamed Gallagher, by contrast, were merely repeating what they had heard or seen posted on line.

Kevin Yolken, a Honolulu attorney who represented Pavlovsky and other defendants, said it’s impossible to know exactly what the jury was thinking. But he said it’s reasonable to infer that the difference was that  Pavlovsky had had direct contact with Gallagher, while the others had relied on things like screenshots of Pavlovsky’s Facebook chats with Gallagher.

“I think that is what’s going on,” Yolken said. “That’s the only obvious difference between Kate and the other defendants.”

Gallagher’s attorney, Megan Kau, declined to comment.

Truth Is Usually A Defense

The general rule regarding defamation is that it’s unlawful to knowingly or recklessly make false and damaging statements about someone to a third party. A key question is whether the statement is an objective one that can be proven true or false, or merely an opinion. Truth is generally a defense to a defamation claim. A defamatory statement made in writing is known as libel.

Kobayashi previously described the issues in this case while denying summary judgment for the defendants. She wrote, “With respect to the statements based on first-hand knowledge, ‘the question presented is whether the defendants here acted reasonably with regard to the grounds they had for believing’ Gallagher did the things they accused him of in their Facebook posts and direct messages.”

For those without direct knowledge, the judge said, the question was whether the doulas were negligent or unreasonable in repeating things they had heard from others.

Jeff Portnoy, a media lawyer with the Cades Schutte law firm, said the jury verdict is unusual, given that Pavlovsky’s statements were found to be true, while similar statements made by the others – Vivian Best, Jane Hopaki, Emilee Saldaya and Bethany Kirillov – were not.

Portnoy said it’s difficult for him to know how that happened because he did not attend the trial. It’s possible the jury didn’t understand the testimony completely, he said. It’s also possible they didn’t understand the jury instructions presented by the court, which he said were “not easy” to understand.

“But,” he said, “if the statements were found to be true in the first instance, it really is puzzling.”

‘There Are Kinks And Fetishes For Everything’

Another issue involves the $1 jury verdict. Eric Seitz, who represented some of the defendants in the case, said the jury originally awarded Gallagher zero dollars in damages. Seitz said this initial verdict amounted to “jury nullification,” which occurs when a jury refuses to find a defendant liable or guilty, often as an expression of broader social concerns, despite the evidence presented at trial and the applicable laws.

But in this case, Seitz said, Kobayashi sent the initial verdict back to the jury with instructions to impose at least some general damages, which would be necessary to award punitive damages. If the awards survive post-trial negotiations and motions, Seitz said, the defendants will likely appeal. Even the smallest of the punitive damage awards, he noted, is 1,000 times the general damages award.

Danny the Doula
In a Facebook post that’s part of the court record in his defamation suit against doulas who spoke out against him, Danny Gallagher shared how he has worked with doulas to get women to share erotic photos on line. U.S. District Court

One thing that’s not in dispute is that Gallagher encouraged women to take and disseminate erotic photos while they were lactating. He claimed in messages to have helped new mothers make substantial amounts of money making lactation fetish photos while maintaining privacy by posting behind paywalls on sites like Patreon.

“There are kinks and fetishes for everything under the sun,” he wrote in one message. “If you play your cards right, Patreon is the way to live the life of your dreams.”

He told Pavlovsky, “One mama I helped makes $6,000 a month by doing photo and video (sic) of herself lactating. … Another mama I’ve helped, just takes erotic photos of herself in public places, and has a membership portal.”

Gallagher tried to ingratiate himself into the world of doulas and lactation consultants with a fabricated story that his former partner had committed suicide in front of him, taking her life and the lives of the couple’s unborn twins — a trauma that Gallagher told people led him to seek solace helping other women deliver babies.

While Portnoy said the nominal $1 damage award for Gallagher indicates the jury didn’t like him, the punitive awards could mean the jury also didn’t have complete sympathy for the doulas who circled the wagons against him.

The verdicts, he said, could be “a pox on both houses” — a way for the jury to ask, ‘Why did we have to spend two weeks listening to this?’

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