October 22, 2014

Court of Appeal affirms $18 million in punitive damages; reduction of compensatory damages from $30 million to $6 million does not require retrial of punitive damages (Izell v. Union Carbide)

This published opinion from the California Court of Appeal (Second District, Division Three) could be headed to the California Supreme Court.

In this asbestos personal injury action, the jury awarded $30 million in compensatory damages and $18 million in punitive damages.  The trial court ruled that the compensatory damages were excessive and reduced them to $6 million. (Technically, the court ordered a conditional new trial subject to the plaintiffs' acceptance of a remittitur.)

The defendant argued on appeal that it was entitled to a new trial on punitive damages in light of the dramatic reduction of the compensatory damages.  As noted in prior posts, California case law supports the notion that the punitive damages award should be reversed in these circumstances. The Court of Appeal in this case, however, ruled that reversal was not necessary because the punitive damages award was not constitutionally excessive when compared to the reduced compensatory damages.

The Court of Appeal's opinion overlooked a problem that has nothing to do with whether the award is constitutionally excessive.  In the punitive damages phase of this trial, the jury was instructed to select an amount of punitive damages that bears a reasonable relationship to the actual harm to the plaintiff.  So the jury came up with a number---$18 million---that the jurors thought was reasonable in relationship to $30 million in actual harm.  In other words, they thought a punitive damages award that was 60% of the compensatory damages award was reasonable. 

But it turns out that the actual harm was only $6 million.  There's at least a fair chance that the jury would have come up with a different number if they had known that.  Perhaps they would have awarded $3.6 million (60% of $6 million).  Maybe they would have gone higher.  Or lower.  No one can know.  Because no jury ever decided what amount of punitive damages is appropriate in relation to the $6 million of actual harm that occurred here, the defendant should be entitled to a new trial on that issue.

I think there's a decent chance the California Supreme Court will review this issue, for several reasons.  First, the opinion is published.  Second, Justice Kitching wrote a dissenting opinion that points out the error of the majority opinion on exactly this point.  Third, there is a conflict in California law on this issue, with multiple published opinions on point.

The last time I predicted that that the Supreme Court would grant review on this issue, I was wrong.  But there was no dissenting opinion in that case. So I'm going out on a limb and predicting that the dissent will be enough to get the Supreme Court's attention this time.

Full disclosure: our firm represents the defendant in this cases, Union Carbide, in other matters.  We were not involved in this appeal.

October 8, 2014

Nevada Supreme Court reverses $250 million punitive damages award against California tax agency (Franchise Tax Board v. Hyatt)

Several years ago we reported on a jury verdict awarding a California taxpayer $250 million in punitive damages against the California Franchise Tax Board.  In a nutshell, the plaintiff claimed that the Tax Board made misrepresentations to him and portrayed him in a false light by telling others he was a tax cheat.

The Nevada Supreme Court issued an opinion last month affirming some of the liability findings in the plaintiff's favor but wiping out most of the damages, including the punitive damages.  The court held that, “Because punitive damages would not be available against a Nevada government entity, we hold, under comity principles, that FTB is immune from punitive damages.”  Just like that, a $250 million punitive damages award is gone.  Poof! (Apologies to California Attorney's Fees.) 

Incidentally, California has the same rule: public entities are immune from punitive damages. (Government Code section 818.)

You can read more about the case at Taxable Talk and CalCorporateLaw.


Texas trial court reduces punitive damages award against Boston Scientfic from $50 million to $11.2 million.

Statutory caps on punitive damages have been in the news a lot lately.  Continuing that trend, Reuters reports that a Texas judge has reduced a punitive damages award against Boston Scientific Corp. from $50 million to $11.2 million in a lawsuit involving allegedly defective vaginal mesh implants.

The court reduced the punitive damages pursuant to Texas's statutory cap, which limits punitive damages to double the economic damages, plus an additional amount of up to $750,000 in non-economic damages.  Texas plaintiffs have already tried unsuccessfully to challenge the constitutionality of the cap.  Perhaps they'll take another run at it in this case.

The Reuters story reports that the compensatory damages award in this case was $23 million.  That must have included about $5.23 million in economic damages (2 times $5.23 million plus $750,000 equals about $11.2 million).

September 29, 2014

Federal district judge in New York reduces $7.5M punitive damages award in record industry lawsuit against founder of MP3 service

Today, Judge William H. Pauley III of the Southern District of New York issued a decision reducing a punitive damages award from $7.5 million to $750,000 in a lawsuit brought by numerous record companies against a guy who operated an MP3 downloading service.

Yes, people are still litigating over free MP3 downloads. This case has been dragging on for seven years, generating over 628 docket entries and some apparent frustration on the part of Judge Pauley, judging by the tone of his opinion.

The record industry plaintiffs obtained a jury verdict awarding over $48 million in damages, including $7.5 million in punitive damages.  In his order, Judge Pauley notes that the plaintiffs introduced no evidence of actual harm, and obtained nominal damages of only $40.  (The other damages were all civil statutory penalties.)  For this and other reasons, Judge Pauley concluded that the $7.5 million in punitive damages awarded by the jury was grossly excessive, and that the defendant is entitled to a new trial unless the plaintiffs agree to a remittitur of the damages to $750,000.  That still seems awfully high given the complete lack of evidence of any actual harm.  But it pales in comparison to the huge statutory penalties in the case, which will probably be the focus of any appeal by the defendant.

Although media reports and commentaries about punitive damages often speak as if punitive damages are only awarded against big corporations in favor of individual consumers, this case is an illustration that many actual punitive damages cases don't fit that mold.  Sometimes, as here, they involve big corporations suing an individual. 

Hat tip: Ray Beckerman

Montana Supreme Court hears arguments on constitutionality of punitive damages cap

We recently reported on a case against Hyundai in which a Montana trial judge ruled that Montana's cap on punitive damages is unconstitutional.  In that post, we noted that the Montana Supreme Court would make the ultimate decision about the cap's constitutionality. 

As it turns out, the Montana Supreme Court may be addressing that issue sooner than we thought.  The issue is already teed up in Masters Group International v. Comerica BankThe Bozeman Daily Chronicle reports that the Masters Group case was argued in the Montana Supreme Court just last Friday.  The story notes, however, that the Supreme Court might not decide the constitutionality of the cap because the court could dispose of the case on other grounds. 

Incidentally, the plaintiffs' counsel in Masters Group also represents the plaintiffs in the Hyundai case.

September 26, 2014

En banc Fifth Circuit disallows punitive damages in maritime cases involving claims of unseaworthiness (McBride v. Estis Well Service)

The Fifth Circuit issued an en banc opinion yesterday addressing whether punitive damages are available under the Jones Act or general maritime law (a species of federal common law) for a defendant's failure to maintain a seaworthy vessel.  The court answered that question "no."

The plaintiff in this case was the personal representative of a man who "met his death in the service of his ship."  The plaintiff brought a claim for unseaworthiness under general maritime law and a claim for negligence under the Jones Act, seeking both compensatory and punitive damages.  The trial court ruled that punitive damages are unavailable for either claim, but a three-judge panel of the Fifth Circuit reversed.  The panel believed that the Supreme Court's decision in Atlantic Sounding v. Townsend permits recovery of punitive damages under maritime law for causes of action, like unseaworthiness, that predate the Jones Act. 

The en banc court disagreed.  It held that the case is controlled not by Townsend but by the Supreme Court's earlier decision in Miles v. Apex Marine Corp., which held that the Jones Act limits a seaman's recovery for unseaworthiness to "pecuniary losses."  Because punitive damages are non-pecuniary, the court concluded that Miles prohibits punitive damages for claims of unseaworthiness.  The Court distinguished Townsend on the ground that it involved claims for "maintenance and cure," not unseaworthiness.

A dissenting opinion argues that Townsend cannot be so easily distinguished.  According to the dissent, Townsend stands for the broader proposition that punitive damages are available for all maritime claims unless Congress has expressly prohibited them.  Because Congress has not expressly disallowed punitive damages for unseaworthiness claims, the dissent would permit them.

That's a thumbnail sketch of the case.  It's actually a lot more complicated, and consists of five separate opinions spanning 73 pages. 

It won't be surprising if this case ends up in the Supreme Court.

HT: How appealing 

Related posts:

Fifth Circuit grants rehearing to address availability of punitive damages in seaworthiness cases


September 24, 2014

Montana trial judge declares state's cap on punitive damages unconstitutional, but reduces award against Hyundai from $240 mllion to $73 million

Earlier this year we reported that a Montana jury awarded $240 million in punitive damages against Hyundai for a crash that killed two teenagers.  We noted that Montana has a statute that prohibits punitive damages in excess of $10 million.  (The statute actually limits the award to the lesser of $10 million or 3 percent of a defendant's net worth.)

The Associated Press reports that the trial judge in that case has declared Montana's cap on punitive damages unconstitutional.  The story doesn't reveal why the judge thought the statute unconstitutional.  Most courts have rejected constitutional challenges to punitive damages caps, but this ruling comes closely on the heels of a recent decision by the Missouri Supreme Court striking down a cap in that state.  This is just a trial court decision; the Montana Supreme Court will be the ultimate arbiter of the propriety of the cap in Montana.

After striking down the cap, the judge nonetheless concluded that the $240 million awarded by the jury was excessive.  She reduced the award to $73 million, nine times the compensatory damages of $8.1 million.

Presumably Hyundai will appeal to the Montana Supreme Court and will argue not only that the statutory cap is valid, but also that the punitive damages cannot exceed the amount of the already substantial compensatory damages award.

September 22, 2014

Forthcoming article: "Surprisingly Punitive Damages"

Professor Bert Huang of Columbia Law School has posted a preview of his forthcoming Virginia Law Review article entitled Surprisingly Punitive Damages.  The article proposes a solution for the redundant effect of punitive damages in mass tort cases, as described in the abstract:

Think first of the classic problem of redundant punitive damages: A defendant has caused a mass tort. Plaintiff 1 sues, winning punitive damages based on the overall reprehensibility of that original act. Plaintiff 2 also sues — and also wins punitive damages on the same grounds. So do Plaintiff 3, Plaintiff 4, and so forth.

Next, consider a more subtle problem: Many statutes set the minimum award per claim at a super-compensatory level, based on the assumption that private suits may need extra inducement. But when enforcement turns out to be more vigorous than was assumed — most famously, when thousands or millions of claims are brought at once — then the damages in even a single case can stack up to surprisingly punishing effect.

These problems share a conceptual feature that I analyze here: The damages in each context can be seen as encompassing two distinct components — a “variable” portion that properly varies with the number of claims, and a “fixed” portion that should be awarded only once. The crucial error that leads to surprisingly punitive damages is repeatedly awarding not only the variable but also the fixed component of damages, in cases with multiple claims.

One natural solution for neutralizing such redundancy is to allow courts to run concurrently the fixed component of such repeated awards. This paper explores how a “concurrent damages” approach might be applied to variations of each problem; addresses its pros, cons, and complications; and explores how it relates to other procedural devices, including preclusion and aggregation.
I haven't had a chance to read the article yet, but it comes "highly recommended" by Professor Lawrence Solum (Georgetown) at Legal Theory Blog.

September 16, 2014

Seventh Circuit vacates $100 million punitive damages award against ConAgra

In 2012 we reported on a $100 million punitive damages award against ConAgra Foods, Inc. arising out of a fire in a grain elevator.  According to Reuters, the U.S. Court of Appeals for the Seventh Circuit has reversed that punitive damages award in its entirety, finding that ConAgra was not liable for the fire.  Read the opinion here.

September 15, 2014

New Mexico jury awards $65 million in punitive damages; Texas jury awards $15 million

I'm catching up on punitive damages news after being out of the office last week.  While I was out, the AP reported that a jury in New Mexico awarded $2.3 million in compensatory damages and $65 million in punitive damages in a lawsuit alleging that the plaintiff was given a pacemaker he didn't need.  That's a ratio in excess of 28 to one, which should not survive post-trial and appellate review.

Also last week, Crain's Cleveland Business reported that a jury in Texas awarded $3.6 million in compensatory damages and $15 million in punitive damages in a mesothelioma case against the Goodyear Tire & Rubber Company.  By statute, punitive damages in Texas are capped at the greater of (1) $200,000 or (2) two-times the economic damages, plus an amount equal to the non-economic damages, not to exceed $750,000.  So unless the plaintiffs can persuade the Texas courts that the cap is unconstitutional (see the post below), that award won't survive either.