Wednesday, February 28, 2007
Tony Sebok has a Writ piece on the Williams case that makes close to the same argument I made ("I would wager it will make exactly zero difference in the outcome.") -- that is, that the result of Williams may be minimal, and certainly far less important than the more problematic hard cap. As he puts it:
In the future, when issues of punitive damages return to the Court, a lot will depend on whether the "nuance" identified by Breyer is real or illusory. The Court sent Philip Morris back to the Oregon Supreme Court for further proceedings consistent with its decision. As noted above, a new trial for damages seems overwhelmingly likely, if settlement is not reached. The question at that next trial will be whether it will make a practical difference to the jurors whether they are asked to assess punitive damages against Philip Morris based on the reprehensibility of the firm's defrauding an unknown number of Oregon smokers, and being asked to punish Philip Morris for defrauding an unknown number of Oregon smokers.
It is easy to see, then, why corporate America is nervous about the victory it achieved in Philip Morris. Granted, it is theoretically possible to imagine that a jury that returned $80 million in order to punish would return less than that in order to measure the reprehensibility of the same corporate act. Still, I doubt that many defense lawyers for the automobile and pharmaceutical industries want to be the guinea pigs to find out whether this possibility might also be a practical reality.