Mass Tort Litigation Blog

Charleston Law Review Symposium Issue on Punitive Damages After Philip Morris v. Williams

Last September, Charleston Law School hosted a symposium entitled, Punitive Damages, Due Process, and Deterrence: The Debate After Philip Morris v. Williams.  (See prior posts here and here.)  The resulting symposium issue of the Charleston Law Review has just been published.  Articles in the issue include the following:

Anthony Sebok, After Philip Morris v. Williams: What is Left of the "Single-Digit" Ratio?, 2 Chas. L. Rev. 287 (2008)

Anthony J. Franze, Clinging to Federalism: How Reluctance to Amend State Law-Based Punitive Damages Procedures Impedes Due Process, 2 Chas. L. Rev. 297 (2008).

Neil Vidmar & Matthew Wolfe, Fairness Through Guidance: Jury Instruction on Punitive Damages After Philip Morris v. Williams, 2 Chas. L. Rev. 307 (2008)

Christopher J. Robinette, Peace: A Public Purpose for Punitive Damages?, 2 Chas. L. Rev. 327 (2008).

Keith N. Hylton, Due Process and Punitive Damages: An Economic Approach, 2 Chas. L. Rev. 345 (2008)

Victor E. Schwartz & Christoper E. Appel, Putting the Cart Before the Horse: The Prejudicial Practice of A "Reverse Bifurcation" Approach to Punitive Damages, 2 Chas. L. Rev. 375 (2008)

Elizabeth J. Cabraser & Robert J. Nelson, Class Action Treatment of Punitive Damages Issues After Philip Morris v. Williams: We Can Get There From Here, 2 Chas. L. Rev. 407 (2008)

Byron G. Stier, Now It's Personal: Punishment and Mass Tort Litigation After Philip Morris v. Williams, 2 Chas. L. Rev. 433 (2008).

Michael L. Rustad, The Uncert-Worthiness of the Court's Unmaking of Punitive Damages, 2 Chas. L. Rev. 459 (2008)

Downloads of the articles via .pdf files are available at TortsProf Blog.

BGS

Foreign Courts Wary of Punitive Damages

The New York Times has an interesting story on Italians’ view of punitive damages. Apparently they are "so offensive to Italian notions of justice" that Italy refuses to enforce judgements containing punitive damages. Here’s an excerpt of the full article, which begins by highlighting an Alabama woman who sued when her 15-year old’s motorcycle helmet failed:

Most of the rest of the world views the idea of punitive damages with alarm. As the Italian court explained, private lawsuits brought by injured people should have only one goal — compensation for a loss. Allowing separate awards meant to punish the defendant, foreign courts say, is a terrible idea.

Punishments, they say, should be meted out only by the criminal justice system, with its elaborate due process protections and disinterested prosecutors. It is not fair, they add, to give plaintiffs a windfall beyond what they have lost. And the ad hoc opinions of a jury, they say, are a poor substitute for the considered judgments of government safety regulators.

Some common-law countries do allow punitive damages, though in limited circumstances and modest amounts. In the United States, by contrast, enormous punitive awards are relatively common, although they are often reduced or eliminated on appeal. Last month, for instance, the United States Supreme Court heard arguments in the Exxon Valdez case, where a jury’s initial award of $5 billion was later reduced to $2.5 billion.

Still, such awards terrify foreign courts.

"The U.S. practice of permitting a lay jury to exercise largely discretionary judgment with limited constraints in awarding punitive damages is regarded almost universally outside the U.S. with a high degree of disfavor," said Gary Born, an American lawyer who works in London.

Foreign lawyers and judges are quick to cite particularly large American awards. Julian Lew, a barrister in London, recalled a Mississippi court’s $400 million punitive award against a Canadian company in 1995 with scorn. "It did bring America into total and utter contempt around the world," Mr. Lew said.

Yet there are signs that the gap between the United States and the rest of the world is narrowing, as American courts and legislatures start to limit punitive awards and other countries start to experiment with them.

Punitive damages have deep roots in American and English common law, but their nature has changed here over time. "Until well into the 19th century," Justice John Paul Stevens of the Supreme Court wrote in 2001, "punitive damages frequently operated to compensate for intangible injuries" like pain and suffering or emotional distress.

These days, driven by the structure of the American civil justice system, entrepreneurial plaintiffs’ lawyers and the populism they embrace, punitive damages are used to send messages to large corporations, to fill gaps in regulation and to reward successful plaintiffs with multiples of what they have lost. Distinctive features of the American legal system — civil juries, class actions, contingency fees and the requirement that each side bear its own lawyers’ fees — all play a role in amplifying punitive damages.

ECB

Punitive Damages and the World

Interesting article by Adam Liptak in tomorrow's New York Times -- Foreign Courts Wary of U.S. Punitive Damages -- as part of the series on the American legal system in comparative perspective.  The main point of the story is the uniqueness of U.S. punitive damages and the reluctance of some foreign courts to enforce U.S. punitive damage awards, but the story also suggests "that the gap between the United States and the rest of the world is narrowing, as American courts and legislatures start to limit punitive awards and other countries start to experiment with them."

HME

Ted Frank Commentary on Exxon Valdez Oral Argument in U.S. Supreme Court

Ted Frank of the American Enterprise Institute comments in a Federalist Society SCOTUScast on oral argument in Exxon v. Baker.

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Oral Argument on Punitives in Exxon Valdez Class Action

The Supreme Court heard oral argument Wednesday on whether to uphold the $2.5 billion punitive damages award against Exxon Mobil and its shipping subsidiary in a class action arising out of the 1989 oil spill of the Exxon Valdez in Alaska's Prince William Sound.  For commentary on the argument and on the Justices' questions, see Scotusblog, Point of Law, and the New York Times.  The Times article points out that the award, on behalf of a class of 32,000 fishermen and business owners, is the largest punitive damages award ever upheld in federal court.  With Justice Alito recused because of stock ownership, a 4-4 tie would result in affirmance of the judgment.  Observers have suggested the strong possibility that the award will be reduced but not eliminated.

HME

Geistfeld on Punitive Damages, Retribution, and Due Process

Professor Mark Geistfeld (NYU) has posted his paper, Punitive Damages, Retribution, and Due Process, 81 Southern Cal. L. Rev. 263 (2008), on the NELLCO Legal Scholarship Repository.  Here's the abstract:

Tort law provides awards of punitive damages for reasons of deterrence and retribution. In light of a recent decision by the U.S. Supreme Court in Phillip Morris USA v. Williams, the retributive rationale for punitive damages will inevitably come under heightened scrutiny. The case involves a punitive award of $79.5 million, which is ninety-seven times greater than the compensatory damages, making it constitutionally suspect for exceeding the single-digit ratio between punitive and ompensatory damages. The Court, though, has never addressed the institutional issue in a case involving serious bodily injury or death, and so Williams poses a number of new questions. How can compensatory damages provide an appropriate baseline for evaluating punitive damages in a case of wrongful death, given that monetary damages provide no compensation to a dead person? What is the appropriate baseline? Any future deterrence provided by a punitive award cannot protect the decedent’s tort right, and so the award must be justified exclusively in terms of retribution. Is retribution inherently subjective and arbitrary, unless constrained by some objective measure such as the single-digit ratio between the punitive and compensatory damages? Or is there some way to translate retribution into dollars? These questions are not limited to wrongful death cases and must be resolved by any court trying to determine whether a punitive award is unconstitutional for exceeding the single-digit ratio. These questions can all be answered once retribution is tied to the inherent limitations of compensatory damages, which yields a method for quantifying this form of punitive damages. Based on government data and methodology for quantifying the social cost of a premature death, this method shows why vindication of the decedent’s tort right in Williams justifies the $79.5 million punitive award. When formulated in this manner, vindictive damages satisfy the requirements of both substantive and procedural due process and provide a baseline for reviewing courts to determine whether any given punitive award, like one based on general deterrence, is excessive in violation of substantive due process. This method fully accounts for the reprehensibility factors that determine the constitutionality of a punitive award, while also explaining why the Court could defensibly rely on procedural due process to reverse and remand Williams back to state court.

BGS

U.S. Supreme Court to Review Exxon Valdez Punitive Damages

The United States Supreme Court has granted certiorari to review the punitive damages award in the Exxon Valdez litigation. Interestingly, Justice Alito has recused himself, because of his ownership of Exxon stock.  Here's an excerpt from the cnn.com article, Supreme Court to review Exxon Valdez damages:

The Supreme Court on Monday agreed to decide whether Exxon Mobil Corp. should pay $2.5 billion in punitive damages in connection with the huge Exxon Valdez oil spill that fouled more than 1,200 miles of Alaskan coastline in 1989.

The high court stepped into the long-running battle over the damages that Exxon Mobil owes in the spillage of 11 million gallons of oil into Alaska's Prince William Sound, the worst oil spill in U.S. in 1994.

The justices said they would consider whether the company should have to pay any punitive damages at all. If the court decides some money is due, Exxon is arguing that $2.5 billion is excessive under laws governing shipping and prior high court decisions limiting punitive damages.

The damages were, by far, the largest ever approved by federal appeals judges, the company said in its brief to the court.

The case probably will be heard in the spring. The court's last ruling on punitive damages, in February, set aside a nearly $80 million judgment against Altria Group's Philip Morris USA. The money was awarded to the widow of a smoker in Oregon.

BGS

Dupont Liable in West Virginia Zinc-Waste Class Action; $196.2 Million in Punitive Damages Awarded

As the Associated Press reports -- DuPont guilty of wanton, willful, reckless conduct: Company ordered to pay nearly $200M over zinc waste site in Harrison County -- Dupont has been found liable in a West Virginia class action suit apparently based on claims of negligence and public and private nuisance in connection with the dangers of a zinc waste site.  The multiphase trial plan resulted in the jury awarding $196.2 million in punitive damages, in one of the early post-Williams punitive-damages, class-action awards.  Total damages in the lawsuit, which include the cost of medical monitoring, surpass $400 million.  The lawsuit was brought by Florida plaintiffs' attorney Mike Papantonio.

BGS

Punitive Damages in Nevada Prempro Trial

A jury in Reno today lashed Wyeth with a $99 million punitive damages verdict in a three-plaintiff Prempro lawsuit in Nevada state court.  The massive award was predictable given how events unfolded in the case last week.  On Wednesday, the jury rendered a compensatory damages verdict totaling $134.5 million.  When Judge Robert Perry learned that the jury was confused about compensatory and punitive damages, he ordered the jury to reconsider the amounts, and the jury came back with a total compensation verdict of $35 million.  Today, the jury returned to consider punitive damages, and unsurprisingly hit Wyeth with essentially the same amount it had intended as punishment last week. An AP story on the Houston Chronicle website -- Punitive Damages Awarded in Wyeth Case -- reports on today's punitive damages verdict:

Jurors awarded $99 million in punitive damages Monday to three Nevada women who claimed hormone replacement drugs distributed by pharmaceutical giant Wyeth caused their breast cancer. A Wyeth attorney said the award would be appealed. ...

After lawyers for both sides gave closing arguments again on Monday, the judge instructed the five-man, two-women jury to move to the punitive stage of the trial to consider whether the company's actions were so "reprehensible" that additional damages were warranted to punish it and discourage such behavior in the future. ...

The jurors returned at 1 p.m. Monday, two hours after they began deliberations following an impassioned plea by one of the plaintiffs' lawyers to return a large enough judgment to "get the attention and hold responsible" a company with a net worth of $14.6 billion.

HME

Prempro Jury Confused; Damages Reduced

If Wednesday's verdicts in the Nevada Prempro case seemed implausibly large for compensatory damages, here's the explanation:  the jury was confused about the difference between compensation and punitive damages.  Although for now, this means a substantial reduction in the verdicts, under the circumstances it cannot be considered good news for Wyeth.

According to this Reno Gazette-Journal article -- Jurors to reconsider Prempro damages -- the judge instructed the jury to reconsider its damages calculations:

Jurors in the Wyeth trial were sent back to the jury room this morning to reconsider the amount of damages the company must pay after they told the judge that they were confused about punitive damages when they ordered the company to pay millions on Wednesday.

The jurors told Judge Robert Perry that they included punitive damages in the total they awarded three women who had sued Wyeth, claiming its hormone replacement drugs caused their breast cancer.

... After learning of the confusion, Perry sent the jury back and said they must first recalculate the past and future damages, and then said he would hold a hearing with witnesses before the panel would decide punitive damages.

Later today, an article by AP writer Sandra Chereb -- Jury Cuts $100M From Award Against Wyeth -- reported that upon reconsideration, the jury reduced the total verdicts from $134.5 million to $35 million:

A jury on Friday slashed $100 million from a judgment against pharmaceutical giant Wyeth after it conceded a previous award was improper because it was intended to punish the company for its hormone replacement drugs.  Washoe District Judge Robert Perry instructed the five-man, two-woman jury to reconsider a $134.5 million compensatory award issued Wednesday after questions were raised about whether the judgment included punitive damages.  Perry said the matter was brought to his attention by a bailiff, who overheard discussion in the jury room.  "If we don't correct it now, we'll be trying this case again," the judge said.  After deliberating for about three hours, jurors on Friday awarded $35 million to three Nevada women for past and future medical expenses, as well as physical and emotional pain and suffering. ...

Perry twice denied a motion by Wyeth lawyer Dan Webb to declare a mistrial over the jury's confusion.  Webb argued that jurors were predisposed to punish the company before the punitive phase of the trial had begun.  The judge said jurors raised questions expressing their confusion during the initial deliberations, but Wyeth lawyers wouldn't allow an explanation. ...

The revised compensatory damage verdicts include $10.5 million for Jeraldine Scofield, $12 million for Arlene Rowatt, and $12.5 million for Pamela Forrester.  The jury will return Monday to decide whether to impose punitive damages.  Given the jury's premature attempt to punish Wyeth with an extra $100 million or so, there cannot be much doubt about how the punitive damages phase will turn out next week.

HME

Punitive Damages Conference at Charleston Law School

I had the pleasure of attending and participating last Friday, September 7, in the Charleston Law School conference, entitled, "Punitive Damages, Due Process, and Deterrence: The Debate After Philip Morris v. Williams."  The conference included top national experts on punitive damages, as well as counsel in Williams, and was very well attended, with likely upwards of two hundred people.   As Professor Michael Rustad of Suffolk Law School noted, if the conference is any indication of the trajectory of recently founded Charleston Law School, it will "rise like an arrow."

Look for the symposium issue from the Charleston Law Review, which will include publication of transcripts and articles from the conference.

BGS

Richard Epstein on the Williams Punitive Damages Case

As I've posted before, there is an upcoming symposium on September 7 at at Charleston Law School in South Carolina on Punitive Damages, Due Process, and Deterrence: the Debate After Philip Morris v. Williams Download charleston_law_school_conference_brochure.pdf.  In advance of that conference, I thought I'd link Richard Epstein's interesting February 2007 Federalist Society audio commentary on the Williams case.

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Charleston Law School Conference on Punitive Damages After Williams

On September 7, 2007, Charleston Law School will host a conference: Punitive Damages, Due Process, and Deterrence: The Debate After Philip Morris v. WIlliams. 

Speakers and moderators at the conference include Theodore Boutrous (Gibson Dunn), Elizabeth Cabraser (Lieff, Cabraser), Robin Conrad (U.S. Chamber of Commerce), Theodore Eisenberg (Cornell), Anthony J. Franze (Arnold & Porter), Andrew Frey (Mayer Brown), Murray Garnick (Arnold & Porter), Lauren Rosenblum Goldman (Mayer Brown), John Gotanda (Villanova), Laura Hines (Kansas), Keith Hylton (Boston), John Mulderig (Altria), Robert Peck (Center for Constitutional Litigation), Terry E. Richardson (Richardson, Patrick), Steven Rissman (Altria), Christopher Robinette (Widener), Michael Rustad (Suffolk), Sheila Scheuerman (Charleston), Victor Schwartz (Shook, Hardy), Anthony Sebok (Brooklyn), Neil Vidmar (Duke), and Judge William Wilkins (Fourth Circuit).  I will be moderating a panel on "The Relationship Between Punitive Damages and Class Actions."

BGS

Charleston Law School Conference on Punitive Damages, Due Process, and Deterrence -- The Debate After Williams

On Friday, September 7, 2007, Charleston School of Law is hosting a conference entitled, "Punitive Damages, Due Process, and Deterrence: The Debate After Williams." Confirmed panelists include Theodore Boutrous (Gibson Dunn), Elizabeth Cabraser (Lieff Cabraser), Robin Conrad (US Chamber of Commerce), Thoedore Eisenberg (Cornell), Andrew Frey (Mayer, Brown), Murray Garnick (Arnold & Porter), Lauren Rosenblum Goldman (Mayer, Brown), John Gotanda (Villanova), Laura Hines (Kansas), Keith Hylton (Boston U.), John Mulderig (Altria), Robert Peck (Center for Constitutional Litigation), Steve Rissman (Altria), Michael Rustad (Suffolk), Victor Schwartz (Shook, Hardy), Anthony Sebok (Brooklyn), Catherine Sharkey (Columbia), Neil Vidmar (Duke), and Judge William Wilkins (4th Cir.).  I will be the moderator for a panel on the relationship between punitive damages and class actions.  The conference chair is Professor Sheila Scheuerman of Charleston School of Law.

BGS

Prof. Doug Rendleman on Defendant's Appeal Bond and Punitive Damages Tort Reform

Interesting article posted on SSRN -- A Cap on the Defendant's Appeal Bond?: Punitive Damages Tort Reform, by Professor Doug Rendleman of Washington & Lee School of Law.  Here's the abstract:

The defendant's supersedeas or appeal bond was a servile drudge of appellate procedure until enormous punitive damages verdicts catapulted it out of local courthouses into headlines. From the verdict that exceeded $10 billion in Pennzoil v. Texaco in the 1980s to the punitive damages verdict of $145 billion in Engle v. Liggett Group that was reversed in the summer of 2006, appeal bonds have played a crucial role in huge-verdict litigation. This article's topic - tort reform statutes that cap an appeal bond - stemmed from punitive damages verdicts in smokers' trials against tobacco companies.

Beginning with appellate procedure, the article traces the appeal bond through related topics: federal abstention, bankruptcy, the arguments for and against state tort-reform statutes that cap an appeal bond, and state and federal constitutional doctrines, including the United States Constitution's Full Faith and Credit Clause.

Since constitutions neither compel nor forbid a limited appeal bond, the author resolved that the decision to cap or not to cap resides in the legislature's realm of evaluating public policy. The appeal bond cap's function of facilitating the defendant's entryway to the appellate court whose warranty is a crucial imprimatur for accurate and legitimate judicial decisionmaking convinced the author to commend a cap of $25 to $50 million for a defendant's appeal bond on a jury's verdict for punitive damages.

BGS

Punitive Damages in NJ Vioxx Case

In the retrial of the Humeston Vioxx case in New Jersey, the jury yesterday afternoon found Merck liable for punitive damages, adding $27.5 million of punitives to the $20 million compensatory damages verdict it had rendered earlier in the day.  Here are excerpts from the AP story in the Houston Chronicle -- Vioxx Jury Awards $47.5M to Idaho Couple:

Merck & Co.'s painkiller Vioxx contributed to an Idaho postal worker's heart attack, a jury in Atlantic City ruled Monday, reversing the verdict in the man's first trial and hitting Merck with a total of $47.5 million in damages.

In one of Merck's biggest losses over the drug so far, the jurors awarded the man and his wife $20 million in compensatory damages Monday morning, then later said Merck should pay $27.5 million in punitive damages.

...

The jurors, after deliberating for about five hours over two days, awarded Humeston $18 million in compensatory damages for pain and suffering and gave $2 million to his wife, Mary. Then, after brief arguments over punitive damages, the jury deliberated briefly late Monday afternoon and decided to assess $27.5 million in punitive damages against Merck.

...

Humeston lost his first trial against the pharmaceutical giant in 2005, but New Jersey Superior Court Judge Carol Higbee granted him a second trial because new evidence surfaced that short-term Vioxx use could also be risky; Humeston took the drug on and off for about two months. Merck insists Vioxx didn't increase cardiac risks until after 18 months of use, but many doctors say research disproves that.

HME

Supreme Court Reverses in Philip Morris Punitive Damages Case

Yesterday, the Supreme Court struck down the $79.5 million punitive damages award in the Oregon tobacco wrongful death case of Mayola Williams v. Philip Morris.  Here's the story in the Chicago Tribune about the 5-4 decision.  The Supreme Court's opinion did not decide whether the amount of punitive damages was unconstitutionally excessive as a multiple of compensatory damages.  In other words, we still don't know just how strictly the Court will apply the single-digit multiple standard of State Farm v. Campbell -- an issue of great practical significance in punitive damages cases.  But in the Williams case, the Supreme Court did address the punitive damages issue most applicable to mass torts, ruling that a jury may punish a defendant only for harm to the actual litigant, not for harm to others.

Today's New York Times ran an editorial criticizing the ruling as "a win for corporate wrongdoers."  The Times may well be correct that this Supreme Court "is more concerned about — and more willing to protect — the powerful than the powerless." The editorial contrasts the Court's narrow view of 8th Amendment protection for criminal defendants with its use of the due process clause to protect corporate defendants from punitive damages.  But on the core issue decided in the Williams case, isn't the Times missing the point?

[T]he court ruled that the award was improper because it punished Philip Morris for harm done to people who were not part of the lawsuit. There is nothing unusual, or wrong, about courts considering the broader impact of a wrongdoer’s misdeeds. As Justice John Paul Stevens noted in dissent, “A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim.” The fact that Philip Morris hurt so many other smokers along with Jesse Williams is surely relevant to its punishment.

The editorial makes it seem like the question is how much a defendant should be punished for its wrongdoing.  But this was not a criminal case or a government proceeding for a civil fine.  Nor was it a class action or other multi-plaintiff litigation.  It was a civil lawsuit brought by an individual plaintiff.  The question is whether an individual litigant is entitled to collect punitive damages for harm to others.  Ultimately, that's a question of aggregation:  Is it permissible to aggregate the amount of punitive damages on the defendant side, without aggregating the distribution of punitive damages on the plaintiff side?  If the goal is to punish a defendant for its harm to multiple victims -- and if we're looking to private civil litigation rather than to government proceedings -- doesn't it make more sense to accomplish this by collective litigation in which the claims of multiple victims can be resolved, rather than by permitting an individual to receive collective punitive damages?

HME

Judge Denies Prempro Punitive Damages

In the Prempro trial of Mary Daniel v. Wyeth, the jury yesterday rendered a verdict for the plaintiffs for $1.5 million in compensatory damages and finding a basis to move to a punitive damages phase, but today the judge ruled as a matter of law that the evidence was insufficient to hold Wyeth liable for punitive damages.  In an interesting twist, however, the judge apparently has decided to allow the jury to hear the evidence on punitives and to render a verdict -- under seal -- in case her ruling is reversed on appeal.  Here's an excerpt from the Reuters report by Jon Hurdle:

A judge on Tuesday agreed with Wyeth that there was insufficient evidence for a jury to find that the drugmaker acted recklessly in marketing its Prempro hormone replacement therapy, but allowed the punitive damage phase of the trial to proceed pending an appeal of the ruling.

However, Philadelphia Court of Common Pleas Judge Myrna Field ordered that any punitive damage award will not be made public unless an appeals court overturns her ruling.

A jury on Monday found that Wyeth failed to properly warn about the cancer risks associated with Prempro and that the drug was responsible for plaintiff Mary Daniel's breast cancer. It awarded Daniel and her husband some $1.5 million in compensatory damages.

The jury also found that Wyeth's conduct was malicious or showed reckless indifference, a finding that under Pennsylvania law would send the jury back to determine additional punitive damages to be paid by the Madison, New Jersey-based company.

While Field ruled in Wyeth's favor, effectively setting aside that part of the jury's verdict -- a ruling that would limit Wyeth's liability to the $1.5 million -- she agreed to allow punitive damages deliberations to proceed under seal after Daniel's attorneys said they would appeal the ruling.

The judge accepted arguments by lawyers for the plaintiff that a decision by an appeals court to overturn her ruling would necessitate a new trial, and that to keep costs down the jury should be allowed to come up with a punitive damages figure that would be kept under wraps, but could be used by the appeals court if necessary.

As a matter of judicial process, it's comparable to the granting of a renewed motion for judgment as a matter of law (JNOV) after denying the initial motion and allowing the jury to deliberate.  The goal is to avoid the inefficiency of a retrial in the event of appellate reversal of the legal ruling.  But Judge Field's action presents two twists on the usual situation.  First, the judge announced her ruling to the lawyers before proceeding to the punitive damages phase.  Even if a judge knows that she intends to grant JNOV, it must be rare for the judge to announce that intention before the jury deliberates, much less before the lawyers present the final round of evidence.  Second, the judge apparently ordered that the final phase and the jury's verdict be conducted under seal.  Ordinarily, the trial and verdict would be accessible to the public even if the judge chooses to grant JNOV.

HME

Ninth Circuit Reduces Exxon Valdez Punitive Damages to $2.5 Billion

Article in the New York Times -- Court Cuts Valdez Judgment Against Exxon, by the Associated Press:

A federal appeals court on Friday cut in half a $5 billion jury award for punitive damages against Exxon Mobil Corp. in the 1989 Valdez oil spill that smeared black goo across roughly 1,500 miles of Alaskan coastline.

The case, one of the nation's longest-running, non-criminal legal disputes, stems from a 1994 decision by an Anchorage jury to award the punitive damages to 34,000 fishermen and other Alaskans. Their property and livelihoods were harmed when the Valdez oil tanker struck a charted reef, spilled 11 million gallons of crude oil.

It's the third time the 9th U.S. Circuit Court of Appeals court ordered the Anchorage court to reduce the $5 billion award, the nation's largest at the time, saying it was unconstitutionally excessive considering U.S. Supreme Court precedent.

This time, in its 2-1 decision, the court ordered a specific amount in damages, while its previous rulings demanded a lower court to come up with its own figures.

BGS

Torts gone wild: Justices risk sending the wrong message in a 'hard case' concerning punitive-damage awards

Editorial from today's Los Angeles Times -- Torts gone wild: Justices risk sending the wrong message in a 'hard case' concerning punitive-damage awards.  Perhaps it's indicative of a shift in popular opinion that the L.A. Times would urge the overturning of a huge punitive damages verdict against a tobacco company and also tangentially note that the plaintiff in the case "had disregarded warnings from his family about the risks of smoking." Here's an excerpt:

After Oregon's highest court affirmed the jury verdict against Philip Morris, the U.S. Supreme Court asked lawyers for the company and Mrs. Williams to address two questions. One was whether Philip Morris' "reprehensible" conduct overrode the requirement that punitive damages bear a reasonable relation to actual damages. The other was whether the Constitution allows a jury in a case brought by one individual to punish the defendant for the effects of its conduct on others.

Both questions seem like no-brainers in light of past decisions about the need for punitive damages to bear a reasonable relationship to proven harm. Yet during oral arguments Tuesday, several justices seemed to suggest that ambiguities in the record — such as whether the Oregon Supreme Court had concluded that punitive damages could be based on harm to non-parties — might require returning the case to lower courts.

Punting the case would be a terrible idea. As this lawsuit demonstrates, many lower courts are uncomfortable with the Supreme Court's efforts to curb outlandish punitive-damage awards. An inconclusive ruling would embolden those courts in their resistance. It also would encourage speculation that recent changes in the high court's membership have undermined its punitive-damage precedents. Two of the six justices in the majority in the 2003 ruling, the late Chief Justice William H. Rehnquist and Sandra Day O'Connor, are no longer on the court.

Huge awards in individual lawsuits — as opposed to sensible legislation — are not the best way to curb smoking, obesity, gun violence and other threats to public health. The Supreme Court should see through the smoke screen of this "hard" case and say that.

BGS