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Monday, October 20, 2008

Confidentiality in Settlements

There's a new RAND paper at SSRN, written by James Anderson of that organization, discussing a situation in which not requiring (indeed, not permitting) confidentiality in settling mass tort cases may be beneficial to defendants.  His case study is of the Baycol litigation.  The abstract:

Settlement agreements that require a plaintiff not to disclose or publicize any information about her claim are both common and controversial. Under some conditions, however, a mass tort defendant will rationally choose to discourage such secrecy. A defendant can use publicity to act as a commitment device akin to a most-favored-nation agreement to increase its bargaining power with plaintiffs. The paper uses the real world example of Bayer's cerivastatin litigation as a case study to illustrate this theory in practice and to explore the public policy implications of this finding.

(I was a defense lawyer for Bayer in the Baycol litigation but had no involvement in this paper.)


October 20, 2008 in Damages, Legislation, Reforms, & Political News, Products Liability | Permalink | Comments (0) | TrackBack (0)

Squabbling Over Exxon Punitive Damages

We don't usually get to hear a lot about what happens after money is released to satisfy (part of) judgments, but in the Exxon Valdez case, we do:

It took better than 19 years for Alaska commercial fishermen and other plaintiffs to win sizeable punitive damages from Exxon Mobil Corp. for the disastrous 1989 oil spill in Prince William Sound.

Now that some money is in hand -- about $383 million -- it still could be months away from distribution.


Because of new legal squabbling among the plaintiffs about how to slice the pie.


October 20, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 9, 2008

Argument Scheduled in Philip Morris III

The Supreme Court has scheduled oral argument for Wednesday, December 3rd in Philip Morris v. Williams (pdf).   

(Via Cal Punitive Damages).


September 9, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 3, 2008

First Set of Merits Briefs in Philip Morris v. Williams III

Cal Punitive Damages has posted links to the opening set of merits briefs in Philip Morris v. Williams III.   The Court granted review back in June on the first question presented:

"Whether, after this Court has adjudicated the merits on a party's federal claim and remanded the case to state court with instructions to "apply" the correct constitutional standard, the state court may interpose -- for the first time in the litigation -- a state-law procedural bar that is neither firmly established nor regularly followed."

The Court declined to review the second issue presented, namely the constitutional excessiveness of the punitive damages award.


September 3, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 2, 2008

Palin on Exxon Shipping v. Baker

Senator John McCain's running mate, Alaska Governor Sarah Palin, comments on Exxon Shipping v. Baker, in which the Supreme Court reduced the punitive damages award to $515 million.   In the interview (from last June), Palin expressed her "disappointment" in the Court decision.     Cal Punitive Damages has the video interview


September 2, 2008 in Current Affairs, Damages | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 12, 2008

Richard Dreyfus Seeks Punitive Damages Against Dad

Cal Punitive Damages notes that Dreyfus has sued his uncle and father for malice and fraud in connection with an unpaid loan, and seeks repayment, interest, and yes, punitive damages. 


August 12, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)

Friday, August 8, 2008

Personal Injury Roundup No. 2 (8/8/2008)

We hope to have a "Roundup" category in the near future.  In the meantime, however, you can find previous editions of the Roundup by scrolling under the Current Affairs category (in the Topical Archive off to the lower right).

Now on to the week in torts: 

Reform, Legislation, Policy

  • Bills to overturn the Supreme Court's preemption decision in Riegel v. Medtronic have been introduced in both the House and Senate.  [TortsProf, Point of Law, Drug&Device]
  • FDA to advertise a fake blood pressure drug in order to study whether the visuals divert consumers from the warnings.  [Pharmalot]
  • NY Assembly Speaker makes personal loans to Counsel Financial, a company that finances plaintiffs' contingency fee litigation.  [NY Times]
  • State AGs, lawyers and lobbyists all attend Conference of Western Attorneys General.  [Legal Newsline]
  • Senate bill would create "Health Care Comparative Effectiveness Research Institute" to review clinical research on drugs, devices and surgical procedures. [Pharmalot]
  • FDA announces new conflict-of-interest rules for advisory committees.  [FDA, SanFran Chronicle]
  • Debate on medical malpractice.  [Overlawyered]

New Lawsuits

  • Finally, a lawsuit in the salmonella outbreak [WSJ Law Blog].
  • Class action against Ford over not-so-limited edition Mustang.   [Reuters]
  • Another mortgage meltdown suit:  Connecticut sues Countrywide, alleging company violated state consumer protection laws by misleading borrowers to take on loans that they could not afford.  CT joins California, Illinois, Florida and the City of San Diego in pursuing litigation against the financial lender.  [Newsday/AP]
  • Beat up because he's a Red Sox fan; suing the Yankees [].
  • Second amended complaint in AutoAdmit lawsuit identifies one defendant.  [ABA JournalWSJ Law Blog, Overlawyered]


  • Medblogs give outsiders chance to eavesdrop on break-room conversations and learn insiders thoughts on clinical studies.  [LA Times, GruntDoc]

Trials, Settlements & Other Ends


  • Second Circuit certifies strict liability question on "when a seller of used machinery may be deemed a regular seller" to New York Court of Appeals.  [Court's opinion (pdf), NY Law Journal/]
  • Fourth Circuit rejects defamation claim against Air American radio host. [AmLawyer/]
  • In a case of first impression, Seventh Circuit affirms removal of 144 plaintiff Burlington Northern wood processing case to federal court under CAFA's provision for "mass actions."   [Court's opinion (pdf), Business Insurance]
  • Eighth Circuit affirms dismissal of switched-at-birth suit under Federal Tort Claims Act on SOL grounds.  [OnPoint]
  • Ninth Circuit considering meaning of "interception" in civil e-mail hacking lawsuit. [WaPo]
  • Federal Circuit hears oral argument in Bikini Atoll nuclear case.  [WSJ Law Blog]


  • House passes bill authorizing unlimited punitive damages in pay discrimination cases.  [Cal Punitive Damages]


  • Bryan Cave starts FDA practice group.  [BLT]

Goofy Stuff

  • Okay, this has nothing to do with torts or personal injury, but I just love those guys over at JibJab

Shameless Self-Promotion (favorite posts of this week)


If you enjoy the Roundup, please send us suggested links; our e-mail addresses are to the left.


August 8, 2008 in Current Affairs, Damages, Legislation, Reforms, & Political News, MDLs and Class Actions, Products Liability, Roundup | Permalink | Comments (2) | TrackBack (0)

Sunday, August 3, 2008

More on that Allstate Case

In the first roundup, I noted the affirmance of a $16 million punitive awards judgment against Allstate.

At Overlaywered, Ted has more details arguing against the judgment.


August 3, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)

Friday, August 1, 2008

Personal Injury Roundup No. 1 (8/1/2008)

Welcome to the first Personal Injury Roundup (and, like Eric, I've no idea whether it should be "round up," "round-up", or "roundup," but let's go with "roundup") on TortsProf.  We hope to maintain the quality of his year doing it and that of Brooks.  As always, but especially for this, we'd love suggested links; e-mail addresses are off to the left.

It's getting to the end of summer, with all of us scrambling to finish various pieces, but it's still an interesting week in TortLand.

Reform, Legislation, Policy

  • Public Citizen criticizes the pro-arbitration analysis performed in recent Chamber studies.  [Public Citizen].
  • Eric Turkewitz's op-ed published in regional NY paper; Ted Frank starts a dialogue on the statistics used within; commenters include Turkewitz and people from Public Citizen, originator of the stat in question [NY PI Law Blog, Overlawyered].
  • Reforms in New Zealand [SSRN].
  • Congress sends president bill banning lead, etc., in toys [AP, see also this week on TortsProf, and two-plus years ago on TortsProf].


  • In a civil suit, what would have been said about this case without video?  [Simple Justice]
  • Six Flags discovery muddles along; 77 deps and at least 18 more months until trial on an accident that happened over a year ago [TortsProf].
  • Bad documents from Zyprexa production in Alaska suggest avoidance of diabetes talk by reps [WSJ Health Blog].

Experts & Science

Trials & Settlements

  • An update on the Kivalina global warming litigation:  Defendants have moved to dismiss arguing no cognizable tort.  Hearing is scheduled for Dec. 9th. [Point of Law]. 
  • Libya & U.S. are close to a settlement relating to 1980s terrorism [WSJ Law Blog].
  • Mirapex/compulsive gambling bellwether trials start and one ends with a plaintiff's verdict [WSJ Law Blog; Pharmalot (notes $8.2 million verdict, evidently including punitives).


  • $16 million verdict against Allstate upheld; could have settled the case for $50K limits [].
  • ScotusBlog discusses and links to Sharkey's Riegel piece and notes Levine's argument date (Nov. 3) [ScotusBlog].


  • The Tennessee Supreme Court upheld a $13 million punitive damages award against Chrysler in a suit claiming that a collapsing minivan seat caused the death of a eight month old baby.  [Point of Law, Overlawyered, ABA Journal].   Chrysler plans to appeal to the U.S. Supreme Court, with Ted Boutrous of Gibson Dunn at the helm.  [AmLaw Daily].

Goofy Stuff

  • Real earthquake interrupts fake judge [YouTube].
  • Ben & Jerry's marketing people are pretty sure the lawyers wouldn't like that video [Turkewitz, and read the URL, Ted].
  • How I ended up in a chicken costume [Spare the Rock, Spoil the Child].

Shameless Self-Promotion (favorite posts of this week)


For sending us stuff: Eric Turkewitz, Brooks Schuelke, and anyone else who did.

Hey, that was fun.  See you next week.


August 1, 2008 in Current Affairs, Damages, Experts & Science, Goofy Cases, Legislation, Reforms, & Political News, MDLs and Class Actions, Products Liability, Roundup, Scholarship | Permalink | Comments (2) | TrackBack (1)

Tuesday, July 29, 2008

No Punitive Damages for NY Smokers

In a decision last week, the New York Appellate Division (First Dept.) held that individual punitive damages claims by NY smokers are barred by the doctrine of res judicata.   The court reasoned that the 1998 Master Settlement Agreement with the tobacco companies extinguished claims for punitive damages:

[A] claim by a private attorney general to vindicate what is an essentially public interest in imposing a punitive sanction cannot lie where, as here, that interest has been previously and appropriately represented by the State Attorney General in an action addressed, on behalf of all of the people of the State, including plaintiffs and the decedent, to the identical misconduct.

The court rejected the idea that punitive damages serve any private purposes: 

[P]unitive damages claims are quintessentially and exclusively public in their ultimate orientation and purpose, and in that respect peculiarly appropriate for prosecution by the Attorney General in parens patriae. Such claims do not, even when asserted in the context of a personal injury action, essentially relate to individual injury. They are allowed, "not to compensate the injured party but rather to punish the tortfeasor and to deter th[e] wrongdoer and others similarly situated from indulging in the same conduct in the future". Indeed, the courts of this State have been so adamant that punitive damages are "a social exemplary remedy,' [and] not a private compensatory remedy," that the imposition of such damages for private purposes has been held to violate public policy.

A claim for punitive damages may, of course, be rooted in personal injury, but for such a claim to succeed the injury must be shown to be emblematic of much more than individually sustained wrong. It must be shown to reflect pervasive and grave misconduct affecting the public generally, to, in a sense, merge with a serious public grievance, and thus merit punitive, indeed quasi-criminal sanction by the State. As Chief Judge Breitel observed in Garrity, punitive damages are in their true aspect a prerogative reserved to the State for the accomplishment of social purposes, and it is thus fitting that those who pursue such damages in the context of private actions should be viewed as acting in the State's behalf, as "private attorneys general." (internal citations omitted).

(My thanks to Meredith Miller for alerting me to the opinion). 


July 29, 2008 in Damages, Products Liability | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 25, 2008

Supreme Court Reduces Exxon Valdez Punitives to $500M

In a 5-3 ruling, the Supreme Court decided the Exxon Valdez [pdf] punitive damages case today. (Justice Alito did not participate in the decision).  The majority opinion was authored by Justice Souter.   The Court found the punitive damages award excessive as a "matter of federal maritime law," and imposed a 1:1 ratio between punitive damages and compensatory damages.  This holding reduced the punitive damages award to just over $500 million.   


June 25, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)

Monday, June 23, 2008

No Exxon Valdez Opinion

Order list here [PDF].


(Note: I initially said "no Exxon Valdez cert." Obviously wasn't awake yet. Cert was granted last fall.

June 23, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)

Monday, June 9, 2008

Cert Granted in Williams v. Philip Morris

SCOTUSBlog is liveblogging today's orders and opinions and reports that the Court granted cert. in the Williams v. Philip Morris case. You can browse our damages category for many posts about Williams and other punitive damages cases.

A later post states: "Note to readers: the grant in Phillip Morris was limited to the first question presented, regarding the Oregon state law procedural bar."


June 9, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)

Friday, June 6, 2008

Third Time's The Charm or Three Strikes & You're Out?

We are still waiting for the Court's decision on the cert petition in Philip Morris v. Williams, the Oregon punitive damages case upholding a 100 to 1 ratio despite remand from the U.S. Supreme Court.  The petition has been punted three times now.   Originally scheduled for discussion at the May 22d conference, the petition was re-listed for discussion at the May 29th conference and again at the June 5th conference.   Assuming (a big assumption at this point!) that a decision was reached yesterday, the order will be out on Monday.


June 6, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)

Monday, June 2, 2008

Some Summer Reading

Sometime in the next few weeks, we'll hear the most recent ruling in the Exxon Valdez case. Want to seem really cool/mildly pathetic at your next summer party? Get up to speed on it thanks to the ScotusWiki.

Good times.


June 2, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 28, 2008

No Cert Decision Yet In Philip Morris v. Williams II

No word yet in Philip Morris v. Williams, the Oregon punitive damages case upholding a 100 to 1 ratio despite remand from the U.S. Supreme Court.  The petition for certiorari was distributed for discussion at the Justice's conference on May 22d, but was not mentioned on the orders list [pdf] released yesterday.   

Notably, as former Chief Justice Rehnquist explained in his book (and elsewhere), petitions of interest to any Justice are placed on the "discuss list" for the conference; petitions not listed on the discuss list are denied.   So presumably Philip Morris made the discuss list for the May 22d conference.   It's possible that the Court is holding the Philip Morris petition pending its decision in Exxon v. Baker.  SCOTUS Blog has listed Philip Morris as a "petition to watch," which means that Akim Gump partner Tom Goldstein has deemed it "to have a reasonable chance of being granted."


May 28, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 6, 2008

Keanu's Excellent Adventure In Punitive Damages

A photographer has filed a personal injury suit against actor Keanu Reeves based on allegations that Reeves struck the photographer with his car.  The suit brings negligence and assault & battery claims.   The complaint seeks an unspecified amount in compensatory and punitive damages.  Yesterday, Judge Elizabeth Grimes of the L.A. Superior Court denied Reeves's motion to strike the punitive damages claim. 

(Via California Punitive Damages).


May 6, 2008 in Current Affairs, Damages | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 29, 2008

Utah AG Calls for Punitive Damages Cap

On Monday, Utah Attorney General Mark Shurtleff stated that he is open to a cap on punitive damages awards. 

To help improve the state's legal climate, Shurtleff said caps on punitive damage awards would, among other things, help prevent physicians from being driven from Utah by skyrocketing medical malpractice premiums, as has happened in Nevada.

"A lot of times those punitive damages awards are outrageous, and the cumulative effect, particularly when it comes to medical malpractice litigation, can create a situation like they have in Nevada," Shurtleff said.

Doctors are just leaving the Silver State because they can't afford their insurance premiums anymore, "and a big part of that is because of these horrific damage awards that are being awarded in some of these cases," he said.

Via Legal Newsline.


April 29, 2008 in Damages, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2008

Hot Off the Presses! Charleston Law Review Punitive Damages Symposium Volume

The Charleston Law Review has published its 2008 symposium volume, which contains articles and essays from the punitive damages symposium that we held back in September.  Check out the contents:

Sheila B. Scheuerman, Introduction, Punitive Damages, Due Process & Deterrence:  The Debate After Philip Morris v. Williams.  (Provides an overview and summary of each essay and article in the volume).  Download a copy of the Introduction:  Download 4_scheuerman_introduction.pdf

Anthony J. Sebok, After Philip Morris v. Williams:  What is Left of the "Single-Digit" Ratio?  Download a copy of Sebok's Essay [pdf file]:  Download 5_sebok.pdf

Anthony J. Franze, Clinging to Federalism:  How Reluctance to Amend State Law-Based Punitive Damages Procedures Impedes Due Process.  Download a copy of Franze's Essay [pdf file]:  Download 6_franze.pdf

Neil Vidmar & Matthew W. Wolfe, Fairness Through Guidance:  Jury Instruction on Punitive Damages After Philip Morris v. Williams.  (Available through SSRN). 

Christopher J. Robinette, Peace:  A Public Purpose for Punitive Damages(Available through SSRN).

Keith N. Hylton, Due Process and Punitive Damages:  An Economic Approach.  Download a copy of Hylton's Article:  Download 9_hylton.pdf

Victor E. Schwartz & Christopher E. Appel, Putting the Cart Before the Horse:  The Prejudicial Practice of a "Reverse Bifurcation" Approach to Punitive Damages.  Download a copy of Schwartz's Article:  Download 10_schwartz.pdf

Elizabeth J. Cabraser & Robert J. Nelson, Class Action Treatment of Punitive Damages Issues After Philip Morris v. Williams:  We Can Get There From Here.  Download a copy of Cabraser's Article:  Download 11_cabraser.pdf

Byron G. Stier, Now It's Personal:  Punishment and Mass Tort Litigation After Philip Morris v. Williams.  Download a copy of Stier's Article:  Download 12_stier.pdf

Michael L. Rustad, The Uncert-Worthiness of the Court's Unmaking of Punitive Damages.  Download a copy of Rustad's Article:  Download 13_rustad.pdf

My thanks again to the symposium participants for a lively and enjoyable discussion.  And my congratulations to Charleston 3Ls Matt Kendall (Editor in Chief), and Christy Fargnoli (Symposium Editor) as well as the entire Charleston Law Review staff for a very interesting collection of essays and articles!


April 1, 2008 in Damages, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 12, 2008

Oregon Supreme Court Sets 4 to1 Ratio on Punitive Damages in Economic Injury Cases

In a decision released last week, the Oregon Supreme Court has set a presumptive 4 to 1 ratio for punitive damages in economic injury cases:  "[A]s a very general rule of thumb, the federal constitution prohibits any punitive damages award that significantly exceeds four times the amount of the injured party's compensatory damages, as long as the injuries caused by the defendant were economic, not physical."   

In sharp contrast to the Philip Morris remand decision upholding an nearly 100 to 1 ratio (prior posts here, here, and here), the court noted " we think that, if a nine-to-one ratio between punitive and compensatory damages is at the limit of what the Due Process Clause normally will allow a court to impose on any tortious conduct [including physical injury], then the limit must be significantly lower for conduct that causes or risks only economic injury."  This language certainly seems to support Tony Sebok's position that the Philip Morris remand was a results-oriented outcome designed to avoid giving a "win" to an unpopular defendant.


March 12, 2008 in Damages | Permalink | Comments (0) | TrackBack (0)