Wednesday, February 21, 2007
Surprise! Insurers like restrictions on punitives.
So here's my question. Would this jury instruction pass muster?
[Members of the jury, e]vidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible. . . . [But you] may not go further than this and use a punitive damages verdict to punish [the] defendant directly on account of harms it is alleged to have visited on nonparties.
Maybe it's not so confusing as I thought on first reading and as I wrote yesterday. Chant the magic language (taken, as you presumably recognize, directly from the opinion), and you're golden. This is despite the fact that I would wager it will make exactly zero difference in the outcome. Go back in time (you can make your own Wayne's World sound effect), tell the jury hearing the story of Jesse Williams's death that language above, and I betcha we'd be back in the same case with the same 100-to-1 ratio. And obviously others disagree, but I think the Oregon court did a pretty good job of at least saying the right words to make that ratio fit within the State Farm guideposts, including the 9-to-1 ratio.
I'm not as skeptical as some about a jury's ability to follow instructions. I think they try. But this case has the apparent result that harm to others will generally be admissible. And so the jury will hear about the harm to other smokers (or patients or residents or whatever) and then they'll be told that they are only to use that evidence of the fact of reprehensibility, not as a basis for calculating harm.
Uh-huh. Good luck with that. State Farm, I'm fairly certain, has had an actual effect (whether good or ill - I'm not a fan, but that's for a different day). This seems to me more likely to create some short-term litigation over what magic phrase works to inform the jury -- I see no reason why the one above won't work just fine, but I'm open to hearing differently -- and then it's just a check-box when drafting jury instructions.