March 3, 2017

A mixed bag of unpublished opinions (Haworth, Saller, Frederick)

The California Court of Appeal issued a trio of unpublished opinions on punitive damages last month, with mixed results for plaintiffs and defendants.  Here's a quick recap:

1.  In Haworth v. Adams the Second Appellate District, Division Two, affirmed a punitive damages award of $13.3 million in a case involving claims of fraud and elder abuse.

The opinion is unclear about what punitive damages issues the defendant raised on appeal.  At one point the opinion states that the defendant argued the punitive damages award was unsupported by the evidence and motivated by passion and prejudice. Those are classic state-law arguments governed by a well developed body of California cases.  But the opinion does not discuss any of those cases, and instead launches into a discussion of federal constitutional standards for excessiveness, without ever actually addressing the sufficiency of the evidence or the passion and prejudice issue.

Aside from that confusion about what issues the defendant raised, the opinion's excessiveness analysis is itself problematic.  According to the opinion, the California Supreme Court has held that a ratio of "9 or 10 to 1 is the appropriate benchmark for determining whether a reasonable relationship exists between an exemplary and compensatory damages award." The opinion then concludes that the award in this case is not excessive because the ratio of 10 to 1 falls within the Supreme Court's "benchmark."

That analysis suggests that any ratio of 10 to 1 or less is necessarily constitutional. But the California Supreme Court has expressly stated otherwise: "multipliers less than nine or 10 are not, however, presumptively valid."  (See Simon v. San Paolo U.S. Holding Co..)  And both the U.S. Supreme Court and the California Supreme Court have indicated that a ratio of 1 to 1 may be the maximum in cases involving substantial compensatory damages awards.  (See Roby v. McKesson.) The $1.3 million compensatory damages award in this case certainly qualifies as substantial, but the Court of Appeal did not address whether the size of that award required a smaller ratio.  Perhaps the defendant did not raise those issues (if the defendant even raised a constitutional excessivness argument at all).

2.  In Saller v. Crown Cork & Seal the Second Appellate District, Division One, reversed a $3.6 million punitive damages award because the plaintiff failed to present evidence of the defendant's financial condition.  Horvitz & Levy represented the defendant in that case so I won't provide any commentary about it.

3.  In Frederick v. Pacwest Security Services the Second Appellate District, Division Seven, affirmed a $63,000 punitive damages award, rejecting the defendant's argument that the plaintiff failed to present sufficient evidence of the defendant's financial condition.  The court observed that the record contained evidence of the defendant's gross receipts, net income, loan amounts, and line of credit. The court found that such evidence was enough to satisfy the plaintiff's burden of proving the defendant's ability to pay the award.  Moreover, the court found the award was not excessive in relation to the defendant's finances, because although the award was equal to the defendant's entire annual net income, it represented less than one percent of the company's annual gross receipts.

February 27, 2017

South Korea moves towards permitting limited punitive damages in products liability cases

Last year we reported on a movement towards permitting punitive damages in South Korea.  That movement appears to be gaining steam, with KBS World Radio reporting that a committee within the South Korean national assembly has approved a bill that would authorize punitive damages against corporations in product liability cases.  The proposal would limit punitive damages to no more than three times the amount of compensatory damages.

Florida appellate court orders new trial in tobacco case with $23.6 billion punitive damages award

Law 360 reports that Florida's First District Court of Appeal has ordered a new trial in a case in which a jury awarded $23.6 billion in punitive damages to the family of a smoker. (See our post about the verdict in 2014.) 

The Court of Appeal's opinion holds that the plaintiffs' counsel committed misconduct during closing arguments by making several improper arguments.  Counsel argued that RJR Reynolds acted wrongly by defending itself, and that it had employed a dishonest legal strategy.  The court observed that "the purpose of closing argument is to facilitate reasoned analysis of the facts and the evidence, not to denigrate the opposing party with outlandish conspiracy theories."   The court observed that the misconduct was "clearly intended to stir the passions of the jury," which apparently it did, judging by the size of the award.

February 20, 2017

Arkansas Senate agrees to let voters decide on constitutional amendment limiting punitive damages

Arkansas could soon join the ranks of states that place a ceiling on punitive damages.  This article from the Magnolia Reporter of Arkansas reports that the Arkansas Senate voted in favor of a resolution (SJR8) that will ask the voters of Arkansas whether to amend that state's constitution to impose a cap on punitive damages.  The amendment would limit punitive damages to the greater of $250,000 or three times compensatory damages.

February 1, 2017

New Jersey federal jury awards $50 million in punitive damages against Lockheed Martin

A few days ago, Law.com reported that a jury in federal district court in New Jersey has awarded $1.5 million in compensatory damages and $50 million in punitive damages in an age discrimination suit against Lockheed Martin. 

The article says the plaintiff bought claims under New Jersey state law and the federal Age Discrimination in Employment Act (ADEA).  The Fifth Circuit recently reaffirmed that the ADEA does not authorize punitive damages, so presumably the punitives were awarded under state law.  But even if New Jersey state law permits punitive damages for such claims, the award is not likely to survive post-trial review, given the 33-to-1 ratio between punitive and compensatory damages.

January 31, 2017

Montana House moves to tighten limits on punitive damages

Insurance Journal reports that the Montana House voted last week 60-40 to further tighten that state's legislative cap on punitive damages.  Under existing Montana law, punitive damages are capped at the lesser of $10 million or 3 percent of the defendant's net worth.  The new law would add a further limitation, prohibiting punitive damages from exceeding three times the amount of compensatory damages.

Back in 2014, a Montana trial court found the current statutory cap unconstitutional. The parties appeared to have settled that dispute, because there was no appeal to the Montana Supreme Court.  That court had another case in 2014 that raised the issue of whether the cap is constitutional, but the court ended up vacating the punitive damages award on other grounds

In any event, California plaintiffs' attorneys can rest easy.  California remains among the minority of states having no legislative limitation on the amount of punitive damages.

January 27, 2017

Punitive damages for IP suits in the EU?

European courts are generally not fans of American-style punitive damages, as we have noted.  But the World Intellectual Property Review has an interesting article about a recent decision from the Court of Justice of the European Union: "EU law doesn't prevent punitive damages in IP suits, says CJEU."  According to the article, the Polish Supreme Court took the view that punitive damages are not allowed for copyright infringement cases in the EU, but it asked the CJEU for a definite ruling on the issue.  The CJEU took up the issue and held that EU member states are permitted to award punitive damages in copyright infringement cases if they so choose.

January 5, 2017

Judge cuts $1B award against Johnson & Johnson; plaintiffs hire Ken Starr for appeal

Texas Lawyer reports that a Dallas federal judge has cut last month's $1.04 billion punitive damages award against Johnson & Johnson down to $540 million.  That ruling was expected, as we noted in our prior post about this case.  It is also no surprise that both sides are unhappy with that result, and both sides have vowed to appeal.

What is surprising, however, is that the plaintiffs have hired Ken Starr to defend the billion-dollar punitive damages award on appeal.  He has been an outspoken critic of punitive damages throughout his career.  In his days as Solicitor General, he chaired a working group that drafted a report calling for various tort reforms relating to punitive damages.  A few years later, he gave an address at Fordham law school, advocating for the total abolition of punitive damages:  "Abolishing punitive damages would be an important, non-tinkering step toward real reform in the law."  (See Law and Lawyers: The Road to Reform (March 1995) 63 Fordham L. Rev. 959, 968.)

Of course, lawyers are professional advocates and we often make arguments for our clients that differ from our own private beliefs.  Still, it's surprising that Ken Starr would take this particular case.  The plaintiffs are probably thinking that his background will lend credence to the argument that, if billion-dollar punitive damages are to exist at all, this is the appropriate case for it.

Ohio jury awards $10.5 million in punitive damages against DuPont

Reuters is reporting that a jury in Ohio has awarded $2 million in compensatory damages and $10.5 million in punitive damages to a man who claimed he developed testicular cancer from exposure to a chemical that leaked from a DuPont plant. 

A DuPont spokesman said the company will appeal because the verdict "was the result of trial rulings that misrepresented the findings of an independent science panel and misled jurors about the risks" of exposure to the chemical in question (perfluorooctanoic acid, also known as PFOA or C8).

December 20, 2016

Are punitive damages available under the ADEA?

The EEOC believes that the Age Discrimination in Employment Act authorizes punitive damages.  (See Enforcement Guidance on Retaliation and Related Issues.)  Courts often find the EEOC's interpretations of federal employment laws persuasive.  But in this case, the Fifth Circuit was not persuaded.

The Fifth Circuit issued an opinion last week reaffirming its view that the ADEA does not authorize punitive damages.  (Vaughn v. Anderson Regional Medical Center.)

Plaintiff's counsel in that case told Bloomberg BNA that the Fifth Circuit stands alone in holding that punitive damages are unavailable under the ADEA.  Not so, according to the author of an ADEA treatise.  Howard Eglit, who writes the treatise Age Discrimination, says numerous courts have addressed whether the ADEA authorizes punitive damages, and "the response has been unanimously in the negative."  (2 Age Discrimination § 8:110 (2d ed.).)

The plaintiff's counsel in Vaughn plans to seek Supreme Court review to resolve the split of authority that he says the Fifth Circuit has created, but Eglit's treatise suggests it will be an uphill battle to show that such a split even exists.