April 15, 2018

New Jersey jury awards $35 million in punitive damages in pelvic mesh case

Law 360 reports that a jury in a New Jersey state court lawsuit has awarded $35 million in punitive damages and $33 million in compensatory damages against C.R. Bard, Inc.  The plaintiffs, husband and wife, claim the company's pelvic mesh devices were defectively designed, causing debilitating pain to the wife, who had the devices implanted in 2009.  New Jersey juries have been busy lately

April 13, 2018

Johnson & Johnson hit for $80 million in punitive damages in New Jersey talc case

Reuters reports that a jury in New Jersey has awarded $80 million in punitive damages, on top of $37 million in compensatory damages, to a plaintiff who claimed he developed cancer as a result of exposure to asbestos in Johnson & Johnson's talc products.

Reuters says this is the first time Johnson & Johnson has lost a trial involving alleged asbestos contamination of its talc product.  It won a similar case that went to trial last year in California.

The company has been hit with some big punitive damages awards in cases involving claims that talc itself causes ovarian cancer, but so far those awards have been tossed out during post-trial motions or on appeal.

Related posts:

Los Angeles trial court tosses $417 million talc verdict

Missouri appellate court reverses $62 million punitive damages award in talc case, finding no jurisdiction (Fox v. Johnson & Johnson)

L.A. jury awards $347 million in punitive damages against Johnson & Johnson in talc case


March 21, 2018

Fresno jury awards $12.4 million in punitive damages in medical malpractice case

The Fresno Bee reports that a local jury has awarded a total of $68 million ($55.6 million in compensatory damages and $12.4 million in punitive damages) in a medical malpractice case against a surgeon. 

According to the story, the plaintiffs accused the doctor of leaving the operating room early to attend a luncheon, leaving a physician's assistant to close a patient's chest after open heart surgery.  The patient suffered a large blood loss that caused him to go into a coma.

March 15, 2018

California jury awards $18 million in punitive damages in police abuse case

The LA Times is reporting that a jury in federal district court has awarded $15.5 million in compensatory damages and $18 million in punitive damages to the parents of a 29-year-old man who was shot and killed by a San Bernardino County deputy sheriff.

UPI.com's story on the verdict reports that the county is contemplating an appeal.

February 27, 2018

Court of Appeal reverses $46 million punitive damages award (Victaulic v. American Home Assurance)

In 2015 we reported on the verdict against AIG in this case, which included over $9 million in compensatory damages and $46 million in punitive damages.  We noted that, if the Court of Appeal affirmed the punitive damages award, it would likely be the largest punitive damages award ever upheld in an insurance bad faith case in California.  It would have been the third largest punitive damages award ever upheld in California, in any kind of case.

Yesterday, the Court of Appeal (First Appellate District, Division Two) reversed the judgment due to prejudicial misconduct by the trial court.  The Court of Appeal found, among other things, that the trial court acted improperly by aggressively questioning a witness and then arranging to have the witness invoke the Fifth Amendment in front of the jury, before any cross-examination by the defense.

Horvitz & Levy represented AIG on appeal.  (Congratulations to my colleagues Peter Abrahams, Mitch Tilner, and Emily Cuatto.)  Our practice is not to provide commentary on our own cases, so I won't dig into the merits of this decision. But the case is worth a read for anyone handling a bad faith case with a punitive damages claim.

February 23, 2018

Plaintiff opposes cert. petition raising "overkill" issue (Crane Co. v. Poage)

Last month we blogged about this pending cert. petition, which asks the Supreme Court to address (among other things) how the lower courts should deal with multiple lawsuits seeking punitive damages for the same tortious conduct. 

This week, the plaintiff filed her opposition brief.  It argues (among other things) that Missouri law protects defendants against multiple punishment, by allowing the defendant to request a credit against any punitive damages award for its potential liability in other cases.  The plaintiff contends that the petitioner forfeited its right to raise this issue because it did not file a post-trial motion seeking such a credit, and did not raise the issue in the Missouri Court of Appeals.

We will continue to track the petition and report on the ruling.

February 16, 2018

Proposed bill would authorize tripling of civil penalties in cases involving minors (AB 2015)

California assembly member Brian Maienschein (R-San Diego) has introduced a bill entitled "Punitive damages: minors," which would authorize tripling of civil fines and penalties in cases involving minors.  


The law would apply to any civil penalty or remedy if (a) the purpose is to punish and deter and (b) the amount is subject to the trier of fact's discretion.  In such cases, the trier of fact could decide to increase the amount by a factor of three, if any of these factors are present:

(1) The defendant knew or should have known that his or her conduct was directed to one or more minors.

(2) Minors are substantially more vulnerable than other members of the public to the defendant’s conduct and actually suffered harm from the defendant’s conduct.
(3) The conduct involved the crimes of prostitution, pimping, and pandering.

It is not entirely clear how this bill, if enacted, would interact with current punitive damages law.  Punitive damages fall into the category of civil remedies that are designed to punish and deter.  And the amounts of such awards are within the discretion of the trier of fact, at least to an extent (subject to state and federal limitations on excessive awards).  Therefore, it appears that this bill would apply to punitive damages, but of course the state legislature cannot override the federal constitutional limitations on punitive damages.  So to the extent this bill would authorize an award in excess of those limitations, federal law would take precedence. 

The status of the bill can be tracked here.

January 23, 2018

Ninth Circuit creates circuit split on availability of punitive damages in unseaworthiness cases (Batterton v. Dutra Group)

The Ninth Circuit issued a published opinion today that expressly disagrees with a decision of the Fifth Circuit.

The issue is whether punitive damages are available in unseaworthiness cases under general maritime law.   The Ninth Circuit answered this question in the affirmative in 1987, in a case called Evich v. Morris.  But the Fifth Circuit ruled a few years ago that a subsequent Supreme Court case impliedly overruled Evich.

Not so, says the Ninth Circuit:

The Fifth Circuit’s leading opinions . . . are scholarly and carefully reasoned, but so are the dissenting opinions, which to us are more persuasive.
This case has the makings of a good cert. petition, with an express circuit split on an issue of federal common law.  Stay tuned to see whether the Ninth Circuit agrees to take this one en banc.