December 16, 2020

Supreme Court grants cert in punitive damages case, but declines to consider punitive damages issue (TransUnion v. Ramirez)

Today the Supreme Court granted a certiorari petition that raised two remedies issues, the second of which involves punitive damages:

1. Whether either Article III or Rule 23 permits a damages class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered. 

2. Whether a punitive damages award that is multiple times greater than an already-substantial classwide award of statutory damages, and is orders of magnitude larger than any actual proven injury, violates due process. 

However, the order granting certiorari expressly limits review to the first issue.  The Supreme Court has not considered the issue of excessive punitive damages since Exxon Shipping in 2008, and the justices apparently have no interest in revisiting that issue again anytime soon.

Hat tip: Rick Hasen  

December 11, 2020

Court of Appeal reverses $6 million punitive damages award in products liability case (Soulliere v. Suzuki)

This unpublished Court of Appeal opinion doesn't directly address any punitive damages issues, but is noteworthy because it wipes out a substantial punitive damages award.

The plaintiff was involved in an accident while riding a Suzuki motorcycle.  He sued Suzuki, claiming the motorcycle's brakes were defective, and persuaded a jury to award $1.7 million in compensatory damages and $6 million in punitive damages.

The Court of Appeal (Fourth District, Division Three) reversed.  The court concluded that the plaintiff failed to introduce sufficient evidence that the accident resulted from a defect in the motorcycle, and that the trial court made multiple evidentiary and instructional errors. Accordingly, the court vacated the entire judgment including the punitive damages.

December 10, 2020

Texas appellate court affirms $50 million punitive damages award in drunk driving case

Law 360 reports that a Texas intermediate appellate court has affirmed a jury's award of $9.8 million in compensatory damages and $50 million in punitive damages. The defendant caused a fatal collision while intoxicated.

Court of Appeal allows rec league hockey player to seek punitive damages for on-ice collision (Szarowicz v. Birenbaum)

In this published opinion, the Court of Appeal allows a plaintiff to seek punitive damages for injuries he sustained in a recreational hockey game when he was violently checked by another player.

Ordinarily, under the primary assumption of risk doctrine, a participant in a sporting event cannot sue another participant for an injury that results from the inherent risks of the sport.  The trial court applied that doctrine here and granted the defendant's motion for summary judgment.  The trial court noted that, although the plaintiff was participating in a "no check" hockey league, the parties' witnesses agreed that "no check" does not mean "no contact," and that being checked is still an inherent risk of playing "no-check" hockey. 

The Court of Appeal (First District, Division Two) reversed the judgment and reinstated all of the plaintiff's claims, including his claim for punitive damages.  The court held that the primary assumption of risk doctrine does not apply when the defendant intentionally injures the plaintiff.  The court pointed to testimony from plaintiff's teammates, who said it appeared that the defendant in this case was intentionally trying to injure the plaintiff, rather than trying to make any legitimate hockey play.  According to the court, a jury could rely on that testimony and find that the defendant intended to harm the plaintiff, which would not only permit the plaintiff to recover compensatory damages, but would potentially support an award of punitive damages as well.

Presumably, plaintiffs' counsel will use this opinion as a template to pursue punitive damages for in-game collisions in other contact sports, and will oppose summary judgment motions with declarations by eyewitnesses who testify that the defendant appeared to have an intent to injure.

November 24, 2020

Supreme Court denies review in Albarracin v. Fidelity National

The Supreme Court of California has denied Fidelity National's petition for review in the Albarracin case, discussed here and here.

November 14, 2020

California Supreme Court to rule soon on Fidelity National's petition for review (Albarracin v. Fidelity National)

We previously reported on the Court of Appeals' affirmance of a $2 million punitive damages award in this employment case.  As we noted, the court concluded that a $250,000 compensatory damages award was not "substantial" for purposes of the rule that lower punitive-to-compensatory ratios are warranted in cases with substantial compensatory damages.

Fidelity National has petitioned for review, raising the following issues (quoted directly from the petition):

1.    Under Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455 (Auto Equity Sales), this Court’s
decisions “are binding upon and must be followed by all the state
courts of California.”
     Does this stare decisis doctrine require the intermediate
appellate courts, in unpublished decisions, to either follow or
meaningfully distinguish this Court’s relevant holdings? 
2.        This Court and the U.S. Supreme Court require
reviewing courts to independently determine the constitutionality
of punitive damages awards, including whether such an award
bears a reasonable relationship to compensatory damages.
    Does the fact that a compensatory award is moderate—that
is, neither large enough to suggest an inherent punitive element
nor small and purely economic—itself justify “a much higher
ratio” of punitive damages (here, nearly 8-to-1)?

The Supreme Court has granted itself a 30-day extension of time to rule on the petition, moving the due date from November 21 to December 21.  Expect a ruling soon.

November 13, 2020

Court of Appeal affirms $6 million punitive damages award in asbestos case (Barr v. Parker-Hannifin)

This unpublished opinion affirms a punitive damages award against Parker-Hannifin, a company that sold asbestos-containing replacement brakes in the late 1970s and 1980s.

Parker-Hannifin argued on appeal that the punitive damages should be reversed because the plaintiff presented no evidence that anyone at the company knew during the relevant time that its products were harmful.  The Court of Appeal (First District, Division Three) rejected that argument, citing evidence that the company complied with OSHA regulations at its own factory, to protect its workers from asbestos exposure.  From that evidence, the court concludes that the company knew asbestos was dangerous, and therefore should have protected consumers of brakes.

The court's analysis does not confront the fact that asbestos exposures in the factory would have been orders of magnitude higher than any exposures experienced by users of the finished product, or the fact that the factory workers were potentially exposed to raw asbestos, whereas the end users could only have been exposed to heavily processed fibers with different potential for causing disease. Given those differences between the two types of exposures, many manufacturers in the 1970s took precautions in their factories without believing that any risks existed for end users.  But the Court of Appeal's opinion does not grapple with that issue, and instead concludes that substantial evidence supports the conclusion that the manufacturer acted despicably and in conscious disregard of a known risk to consumers.

Disclosure: Horvitz & Levy participated in this case, representing Parker-Hannifin's co-defendant, Standard Motor Products, which was not found liable for punitive damages. 

November 11, 2020

Supreme Court denies review in King v. US Bank

 The Supreme Court has denied US Bank's petition for review in the case discussed here.

November 9, 2020

California Supreme Court to rule soon on US Bank's petition for review (King v. U.S. Bank)

We reported in August about this decision in which the Court of Appeal partially reinstated a big punitive damages award against U.S. Bank.  As you may recall, the case involved a U.S. Bank supervisor who was accused of harassment by his subordinates. The company investigated and fired him.  He then sued the bank for wrongful termination and defamation and won a jury verdict for $24.3 million including $15.6 million in punitive damages.  The trial court reduced the amount to $2.7 million but the Court of Appeal bumped it back up to $8.5 million.

U.S. Bank has filed a petition for review with the California Supreme Court raising the following issues (these are quoted directly from the petition):

1. Whether evidence of errors of judgment by human resources (“HR”) employees who repeat allegedly false statements during an internal investigation of alleged workplace misconduct is sufficient to defeat the common-interest privilege and sustain a defamation claim. 
2. Whether an employer that terminates an employee for misconduct may be held liable for wrongful termination and breach of the covenant of good faith and fair dealing based on an inference that the employer rushed the termination so that the employee would not qualify for a bonus.
3. Whether evidence that an entry-level HR employee exercised discretion when investigating alleged workplace misconduct is sufficient to support a determination that she was a “managing agent” whose conduct can subject her employer to punitive damages.
4. Whether the decision below misapplied this Court’s decision—issued the day before—requiring courts to view the evidence supporting a finding of punitive liability through the lens of the clear-and-convincing-evidence standard.
5. Whether the Court of Appeal accorded legally insufficient deference to the trial court’s order granting a new trial or remittitur. 
6. Whether the $8,469,696 punitive award approved by the Court of Appeal—six times the maximum permissible punitive award for the more severe conduct and injuries in Roby v. McKesson Corp. (2009) 47 Cal.4th 686—is unconstitutionally excessive, given the punitive and deterrent effects of the $5,000,000 in non-economic damages and USBNA’s minimal to non-existent ill-gotten gain.

Horvitz & Levy filed a letter on behalf of the Association of Southern California Defense Counsel, asking the Supreme Court to grant the petition. The CELC and the US Chamber of Commerce also submitted letters (see here and here).

The Supreme Court's original deadline to rule on the petition was November 3, but the court issued an order extending its time until December 3.  Expect a ruling soon. 

November 4, 2020

Missouri Supreme Court declines to review $1.6 billion punitive damages award against Johnson & Johnson

Reuters reports that the Missouri Supreme Court has declined to review the intermediate appellate decision that reduced a $4.14 billion punitive damages award to $1.62 billion. You can read our coverage of the Court of Appeal decision here. Not surpisingly, J&J says it plans to file a cert. petition, as reported by With a total judgment in excess of $2 billion, how could they not?