Breaking down latest in Erin Andrews’s Nashville Marriott lawsuit

SI.com legal expert Michael McCann gives his thoughts on Erin Andrews’s lawsuit against Marriott.

The trial in Erin Andrews’s lawsuit against the Nashville Marriott continued Tuesday. Andrews, currently a sideline reporter with Fox Sports and host of Dancing with the Stars, is suing the hotel for allowing a stalker to book the room next to hers and surreptitiously film nude videos of her in 2008 while she worked for ESPN. The stalker, Michael David Barrett, posted the videos online and plead guilty to stalking charges, for which he was sentenced to 30 months in prison. 

Andrews says she has suffered mentally and emotionally as a result of the videos being made public and is seeking $75 million in damages. Andrews also sued Marriott International, but in January a judge dismissed Andrews’ claims against the hotel chain.

On Monday, Andrews testified that ESPN required her to give an interview explaining that the video was not a publicity stunt. On Tuesday, Nashville Marriott’s defense argued that Andrews benefited professionally from the release of the video. 

We spoke to SI.com legal expert Michael McCann to get his analysis of the case’s latest developments. 

Erin Flynn:How much of an impact will Andrews’s deeply emotional testimony have on the jury?

Michael McCann: I think it will have a significant impact on the jury. Her emotional testimony, which carefully details the emotional pain that she has suffered and continues to suffer as a result of this incident, is a key part of her case. Because a significant part of her case is about, what kind of damages did she suffer? And if she is able to persuade the jury that the damages are significant, then her testimony will have been effective. It’s difficult sometimes for plaintiffs in cases where the injury isn’t quote-unquote physical. Erin Andrews wasn’t punched or injured, obviously she wasn’t scarred physically. So she has to be able to tell the jury that in spite of the fact that her injuries aren’t visible she’s nonetheless suffered extreme anguish. And I think that her testimony certainly goes a long way in that regard.

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What do you think of Nashville Marriott’s legal strategy in pointing out how Andrews has profited from the publicity of the incident?

Michael McCann: If this case involved a typical person, I would understand that strategy better because what Nashville Marriott is trying to show is that her damages should not be considered that high. The company is arguing that she has benefited in some way from this publicity. That strikes me as a regrettable strategy. For one, this case is being televised, and it seems at a minimum grossly insensitive, not only to the jurors but to the millions that are following this case.

And secondly, I don’t think it’s very effective because the company knows that she has suffered anguish, real suffering. It doesn’t appear that this incident has helped her career. I think if anything it has caused her a great deal of mental anguish and emotional suffering. I don’t think an incident like this would be career beneficial and also just because she’s getting publicity from it doesn’t mean it’s publicity that she would want. She already was a public figure. It’s not as if this incident transformed her into some public figure. She didn’t need the publicity of this incident by any means.

EF: Is this strategy a common one, or was it a below-the-belt move?

MM: It’s a strategy to argue that if a plaintiff suffered emotional harm and it went on for a long time, it’s not uncommon for a defendant to argue, you really became a public figure. You had new career opportunities because of this incident. And even if we were wrong in what we did, you didn’t suffer nearly as you allege. In fact, there are reasons to think you actually commercially benefited from what happened.

Again, Erin Andrews was already a public figure. There is no evidence that this incident helped her. It probably, based on her testimony, caused her tremendous emotional anguish. That’s not going to be good for anyone’s career.

EF: Did Nashville Marriott fail to fully account for the fact that the public can watch the trial online and essentially be their own jurors?

MM: NashvilleMarriott knew that this case would have been made public. This isn’t a surprise to the company. I think that should have played a role in its litigation strategy. The fact is that this case has tremendous public relations aspects to it. It’s not as if the hotel is without fault. Clearly it has some responsibility. Whether that responsibility is legal can be debated. Its not as if this is a faultless act for Nashville Marriott. Some of these strategies of trying to make Erin Andrews into some type of villain, I don’t think this will work with the jury, but it’s certainly not going to work with the millions of people following this case.

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​EF: Will the publicity of the trial have an impact on the outcome of the case itself?

MM: I don’t think it will impact the trial itself because the jury will be forbidden from hearing about any of this. They’re not going to be able to go on Twitter or Facebook or any of it. But I’ll tell you this, it wouldn’t surprise me if executives at Nashville Marriott are thinking, maybe we should try to settle this case now. Because this case is damaging to our brand, it’s damaging to our goodwill.

EF: Could ESPN be subject to new litigation with the revelation that they required her to publicly discuss her experience?

MM: I don’t think so. It’s unclear as to whether what ESPN required her to do might have violated or breached a term in her employment contract. That’s hard to know. We also don’t know if ESPN’s request or demand of her was one that the company makes of others in the same situation, where they ask that a person adopt a certain strategy when there is a public incident. For instance, are female and male employees at ESPN treated similarly or are they treated differently? We just don’t know. And if we expect that male and female employees are treated similarly, there isn’t as much of a claim. I’m skeptical there will be any legal follow-up for ESPN. Obviously it isn’t a good story for ESPN, but I don’t think this will wind up in court for them.

EF: What impact might this case have on future litigation in sexual harassment cases, both in general and for female journalists?

MM: Traditionally, hotels have a high bar in terms of safeguarding the security and privacy of the guests staying at those hotels. I think this case will advance that. Where hotels are going to be thinking about the Erin Andrews case, about how to make sure that serial stalkers aren’t booked in rooms next to the person they’re stalking. I think that that’s a starting point. In terms of how Erin Andrews was treated at ESPN, I still think we don’t know the whole story there. I’m not trying to defend ESPN. We just haven’t heard ESPN’s side of the story. And I think it’s important to stress that ESPN’s portrayal of what Erin Andrews said might be different from what she said on the stand.

EF: What is the biggest takeaway from the case at this point?

MM: I think my biggest takeaway is surprise that Nashville Marriott has adopted the strategy it’s adopted. I’m surprised, as a starting point, that the company couldn’t work out a settlement with Erin Andrews prior to trial. I think the company had to have known that no matter what happens in this case, the company is not going to look good. And by going to trial, it’s only reminded people of an incident in which a person’s privacy was clearly invaded. To me the takeaway is a very surprising strategy from Nashville Marriott. But beyond that, I think there are deeper questions to be raised about how female journalists are treated by media companies. and whether media companies are sufficiently sensitive and whether they are doing the decent thing. When someone’s been through something terrible, whether it’s a male or female, having some strict policy in place isn’t always the best way of going about it. Sometimes sensitivity entails treating somebody in a better way than what company protocol indicates. And again, we don’t have all the facts here, but I think there are some deep questions to be asked.

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​​EF: Based on what you’ve read about the case, what is your projected outcome?

MM: I would say the trial still has parts to play out, but at this point it appears that Erin Andrews has a very good argument for showing that her privacy was invaded and that she suffered severe emotional harm. However, whether she recovers the kind of damages she's seeking is a much harder call. $75 million is far beyond what is normally recovered when someone dies because of negligence, let alone a case where someone wasn’t physically hurt, wasn’t scarred, wasn’t disabled, wasn’t maimed. Her injuries are certainly serious, but they’re psychological, and sometimes juries aren’t as willing to extend damages to someone who has been victimized in that way. That said, clearly Nashville Marriott’s strategy of going after Erin Andrews, I think that will backfire.

EF: If $75 million isn’t realistic, what amount of damages do you think we could realistically expect her to be rewarded?

MM: I think she’s looking in the millions, but in a very peculiar way, the fact that she’s very successful hurts her argument. Because this incident, I don’t think it helps her career by any means, I totally disagree with Nashville Marriott on that, but she’s been successful professionally in spite of what occurred. So the fact that she hasn’t been—at least from what we can tell—professionally harmed takes away a category of damages that might have been very powerful for her. So her argument is largely about emotional harm and suffering. That is seriously significant, but it’s not necessarily as valuable as physical harm. So I think she can recover in the millions, but I don’t think it’s going to be near $75 million. To me, that’s a number that does not correspond to other cases, and if a jury were to award her that, keep in mind Nashville Marriott will appeal that the damages awarded might be considered excessive.

Update: This story was updated to clarify that West End Hotel Partners, LLC d/b/a Nashville Marriott, and not Marriott International, is currently a defendant.