June 23, 2020

Missouri Court of Appeals affirms $1.62 billion punitive damages award against Johnson & Johnson in talc case

Back in 2018 we reported on this Missouri verdict awarding $550 million in compensatory damages and $4.14 billion in punitive damages against Johnson & Johnson. The case involved 22 plaintiffs who claim they developed ovarian cancer as a result of using J&J's Baby Powder and Shower-to-Shower products.

In this opinion issued today, the Missouri Court of Appeals affirms the bulk of that award, except for some portions attributable to out-of-state plaintiffs, whose claims should have been dismissed for lack of personal jurisdiction.  After subtracting those amounts, the court affirmed the remaining $500 million in actual damages and $1.62 billion in punitive damages.

Before reaching any punitive damages issues, the court rejected various arguments Johnson & Johnson raised to attack the entire judgment, including Johnson & Johnson's arguments that the plaintiffs' scientific evidence was unreliable and contrary to overwhelming scientific consensus. The court concluded that the validity of the scientific evidence was an issue properly decided by the jury.

On punitive damages, the court first rejected Johnson & Johnson's argument that the plaintiffs failed to present clear and convincing evidence of willful, wanton, or malicious conduct, as required by Missouri law for imposing punitive damages.  The opinion discusses a variety of internal J&J communications, dating from the 1970s through the 2000s, in which the company expressed concern about the possibility of asbestos contamination in talc and discussed methods for reducing it.  The company also discussed possible alternatives to talc and evaluated the cost of switching to those alternatives.  Finally, the company lobbied other manufacturers and the FDA to adopt a testing method which they believed would not be able to detect trace amounts of asbestos.

Based on this evidence, the court concluded that the jury could have reasonably inferred that "motivated by profits, defendants disregarded the safety of consumers despite their knowledge the talc in their products caused ovarian cancer." 

There seems to be a disconnect between the court's conclusion and the evidence recited.  The court does not actually mention any evidence that Johnson & Johnson knew asbestos-contaminated talc products could cause ovarian cancer.  To the contrary, the opinion mentions that public health agencies found insufficient evidence to conclude cosmetic talc causes ovarian cancer, and several epidemiological studies found no association between cosmetic talc and ovarian cancer.  If that's true, then how can the court conclude that Johnson & Johnson knew its products would cause ovarian cancer?  The opinion does not explain.

The absence of such evidence caused California courts to conclude Johnson & Johnson could not be subject to punitive damages for the same course of conduct.  In 2017, a Los Angeles jury awarded $417 million in a case with similar allegations, but the trial court vacated the punitive damages award and the Court of Appeal affirmed that decision, as reported here

The Missouri Court of Appeal acknowledges that decision but distinguishes it on the ground that the plaintiffs in the California case did not present evidence about Johnson & Johnson influencing the industry to adopt its preferred testing method.  That distinction, however, fails to address the core holding of the California decision: the plaintiffs could not show Johnson & Johnson knew that contaminated talc presented a risk of ovarian cancer.

Turning to the amount of punitive damages, the court noted that the jury separately awarded punitive damages against two related corporate entities: Johnson & Johnson (“J&J”) and Johnson & Johnson Consumer Companies Inc. (“JJCI”). After subtracting the amounts attributable to the out-of-state plaintiffs, the jury's awards amounted to $716 million against J&J and $900 million against JJCI.  Those amounts were 1.8 times and 5.7 times the amount of compensatory damages against each defendant, respectively.  The court found those ratios were justified by the extreme reprehensibility of the conduct at issue.

The court acknowledged that U.S. Supreme Court's statement that a ratio of one-to-one may be the outermost limit of due process in cases involving substantial compensatory damages awards.  But the court concluded that due process permits larger ratios in this case because the defendants are "large, multi-billion dollar corporations."  That holding would seem to conflict with the U.S. Supreme Court's holding in State Farm v. Campbell that an otherwise unconstitutional award cannot be upheld based on the wealth of the defendant. 

Nor surprisingly, Johnson & Johnson has already said it plans to take the case to the Missouri Supreme Court.  (See NY Times story here.)

June 9, 2020

Court of Appeal reverses $750,000 punitive damages award due to the absence of current evidence of the defendant's finances (Saxton v. Hip Hop Beverage Corp.)

Here is another installment in the long line of unpublished California opinions reversing a punitive damages award on the grounds that the plaintiff failed to present evidence of the defendant's financial condition.  This opinion addresses a recurring sub-issue in this area: if the defendant has no current balance sheets or other financial documents, does that excuse the plaintiff from presenting evidence of the defendant's current finances?  The answer is no.

The plaintiff sued his former employer for discrimination and harassment.  Shortly before trial, he served the defendant with a notice to produce documents at trial, including the defendant's financial records.  The defendant objected and the plaintiff filed a motion to compel production of the documents.  The trial court granted the motion and ordered the defendant to produce its tax returns, income statements, and balance sheets. 

On the first day of trial, the defendant provided the plaintiff with its documents through 2015, but did not produce any documents for 2016 or 2017.  (The trial took place in 2018.)  The company had apparently stopped operating in 2017.  When the plaintiff asked the defendant to produce records for 2016 and 2017, the defendant argued that it had "produced what existed" and was not required to "go create things."  The trial court agreed, and informed the plaintiff that he still needed to carry his burden of proof on the financial condition issue.

The case proceeded to trial and the plaintiff won a jury verdict for $72,000 in compensatory damages and $750,000 in punitive damages.  The defendant appealed, arguing that the plaintiff had failed to present evidence of the defendant's financial condition at the time of trial.

The Court of Appeal (Second District, Division Four) agreed and reversed the punitive damages award. The court held that the record contained evidence of the defendant's finances in 2016, but absolutely no evidence of the defendant's finances in 2018.  The record showed that the defendant ceased operations in 2017, and there was no evidence that it maintained the same assets or equity in 2017 or 2018 that it had in 2016. 

The plaintiff argued that the defendant should be estopped from complaining about the lack of  evidence of its current finances because the defendant failed to produce financial records for 2017 or 2018.  The Court of Appeal rejected that argument, citing the trial court's finding that the defendant produced all the information in its possession, and was not required to create non-existent documents in order to comply with the court's discovery order.  The court also rejected the plaintiff's request to consider new evidence that the plaintiff obtained while the appeal was pending.  The plaintiff bore the burden of presenting financial condition evidence at trial, and that failure could not be cured by supplementing the record after the fact.

June 4, 2020

Texas Court of Appeals reverses $470.8 million punitive damages award against title insurer

One of the largest punitive damages awards in recent years has been reversed by the Texas Court of Appeals. 

Last summer a Texas state court jury awarded a total of $706.2 million, including $470.8 million in punitive damages, in a lawsuit claiming that title insurer Amrock misappropriated trade secrets from tech firm HouseCanary, Inc.  Yesterday the entire judgment was reversed due to an error in the jury instructions on the liability issues.  Blooomberg Tech has the story here.

May 26, 2020

Supreme Court of California seems to preview its holding on clear-and-convincing evidence issue

Last week we reported on the oral argument in Conservatorship of O.B., and we noted that the Supreme Court of California seems inclined to hold that the clear-and-convincing evidence standard applies on appeal.

Further evidence of the Supreme Court's inclination can be found in the Court's May 21 opinion in In re WhiteAs At the Lectern points out, the Court's framing of the substantial evidence issue in that case might presage the outcome in O.B.: the Supreme Court said it needed to determine "whether any court could have found clear and convincing evidence that the person’s release on bail posed a substantial likelihood of great bodily harm to others."  By baking the concept of clear and convincing evidence into that question, the Supreme Court seems to be disagreeing with the idea that the clear and convincing evidence standard disappears during appellate review.  We will find out soon enough.

May 20, 2020

Supreme Court of California hears arguments in case with punitive damages implications (Conservatorship of O.B.)

The California Supreme Court held oral argument yesterday in Conservatorship of O.BThat case is not a punitive damages case, but the issue it presents has significant implications for punitive damages litigation in California.

As previously reported here, the issue presented is whether California appellate courts should take the “clear and convincing” evidence standard into account when deciding whether substantial evidence supports a factual finding that must be proven by clear and convincing evidence.  As readers of this blog are aware, that issue has come up often in punitive damages litigation, including a 2008 case in which the Supreme Court granted review but never reached the issue because the parties settled.

The Supreme Court received amicus briefing in O.B. discussing the implications of this issue in punitive damages cases.  (Horvitz & Levy submitted one of those briefs, on behalf of the U.S. Chamber of Commerce.)  However, the oral argument yesterday focused exclusively on the application of the clear and convincing standard in the context of conservatorship cases.  Neither the parties nor the justices touched on the application of the heightened standard of proof outside of that context.

Based on the questions asked by the justices, I am cautiously optimistic that the California Supreme Court will ultimately take the same position as the U.S. Supreme Court and hold that the clear and convincing evidence standard applies on appeal, and does not "disappear" during appellate review as some Court of Appeal decisions have held.  But it is also possible that the Supreme Court may issue a very narrow opinion, leading to further litigation over this issue outside the conservatorship context.

Washington Legal Foundation article on Missouri punitive damages reform

Anyone interested in Missouri's recent legislation on punitive damages can find a summary in this WLF Legal Opinion Letter, written by Mark Behrens and Jennifer Artman of Shook Hardy & Bacon.

Some highlights: (1) the law limits punitive damages to cases in which “defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others,” (2) the law codifies the requirement that plaintiffs must prove these facts by clear and convincing evidence, and (3) plaintiffs cannot seek punitive damages in their initial complaint, and can add a punitive damages claim only after presenting the judge with evidence establishing a reasonable basis for imposing punitive damages.

May 18, 2020

Supreme Court authorizes recovery of punitive damages against Sudan for 1998 embassy bombings (Opati v. Republic of Sudan)

The Supreme Court issued a unanimous 11-page opinion today, reversing the D.C. Circuit and allowing punitive damages against the government of Sudan for its role in the 1998 bombings of the U.S. embassies in Kenya and Tanzania.

As described in our prior post about this case, the plaintiffs obtained a judgment for $6 billion in compensatory damages and $4.3 billion in punitive damages.  The D.C. Circuit vacated the punitive damages award, ruling that when Congress amended the Foreign Sovereign Immunities Act (FSIA) in 2008 to create a federal cause of action against foreign governments for acts of terror, Congress did not expressly authorize recovery of punitive damages for acts committed before 2008.

The Supreme Court disagreed.  Justice Gorsuch, writing for the court, explained that the National Defense Authorization Act for Fiscal Year 2008 (NDAA) created a federal cause of action for acts of terror, and expressly provided that remedies "may include economic damages . . . . and punitive damages."  Moreover, two other provisions of the act specifically authorized new claims for pre-2008 acts of terrorism.  Although the latter provisions did not expressly mention punitive damages, the Supreme Court found it implausible that Congress would have authorized retroactive application of all the other features of the new cause of action except for punitive damages.

The Supreme Court also rejected Sudan's argument that the 2008 act is equivocal because it says only that awards "may" include punitive damages.  Justice Gorsuch noted that all categories of damages authorized by act are provided on equal terms, i.e., damages "may" include economic, non-economic, and punitive damages.  Thus, the use of the word "may" simply indicates that district courts are given discretion to determine whether each category of damages is appropriate under the facts of the particular case.

However, the Supreme Court stopped short of reinstating the entire $4.3 billion punitive damages award.  That's because the case involved two categories of plaintiffs: (1) U. S. nationals, members of the U.S. Armed Forces, and U. S. government employees or contractors, and (2) foreign nationals who are family members of U.S government employees and contractors.  The NDAA created a direct cause of action for the first category of plaintiffs, but not for the second, who were left to pursue claims under pre-existing state laws.  The D.C. Circuit, after concluding that U.S. nationals could not recover punitive damages, concluded that it would be "puzzling" to allow such a remedy to foreign nationals.  The Supreme Court, having concluded that U.S. nationals can recover punitive damages, asked the D.C. Circuit to revisit the availability of punitive damages for foreign nationals.

May 15, 2020

California Court of Appeal overturns three large punitive damages awards (Curry v. Academy Pointe, Colucci v. T-Mobile, and Tilkey v. Allstate)

The pandemic-related shutdown has brought civil litigation in California to a screeching halt in the trial courts.  But the California Court of Appeal has continued processing cases and issuing opinions, and has overturned three large punitive damages awards since the shutdown began.

1.  In Curry v. Academy Pointe, Inc., a landlord-tenant dispute over disability accommodations, a jury awarded $750,000 in compensatory damages and $4.5 million in punitive damages.  The landlord appealed and the Court of Appeal (Second Appellate District, Division One) reversed the punitive damages award in an unpublished opinion.

The court found the punitive damages award was excessive because it bore no reasonable relation to  the low reprehensibility of defendants’ conduct, the severity of the plaintiff's harm (which was completely compensated by the substantial compensatory damages award), and the possible civil penalties authorized by the Legislature for similar conduct. The court therefore reduced the punitive damages award to $750,000, resulting in a 1 to 1 ratio between punitive and compensatory damages.

[Disclosure: Horvitz & Levy represented the landlord on appeal in Curry.]

2.  In Colucci v. T-Mobile, a workplace retaliation case, a jury awarded $1 million in compensatory damages and $4 million in punitive damages.  T-Mobile appealed and the Court of Appeal (Fourth Appellate District, Division One), in a published opinion, ordered a reduction of the punitive damages award to $1.5 million.

The court concluded that the reprehensibility of T-Mobile's retaliatory conduct was "in the low or moderate range of wrongdoing that can support an award of punitive damages."  And the court acknowledged that the California Supreme Court in Roby v. McKesson set a maximum ratio of 1 to 1 in another case involving a significant compensatory damages award and a low level of reprehensibility.  But the court did not explain why it chose a 1.5 to 1 ratio instead of following Roby's guidance and setting the maximum at 1 to 1.

3. In Tilkey v. Allstate, a jury awarded $2.7 million in compensatory damages and $16 million in punitive damages to a plaintiff asserting a claim of "compelled self-published defamation."  Allstate appealed, arguing that compelled self-published defamation is not a viable tort theory and, even if it were, it could not support an award of punitive damages.  The same court that issued the Colucci opinion, the Fourth Appellate District, Division One, issued a published opinion rejecting those arguments, but reversing the punitive damages award as excessive.  The court noted that the ratio of punitive damages to compensatory damages was more than 9 to 1, comparing the punitive damages only to the portion of the compensatory damages award attributable to defamation.  Rather than reducing the punitive damages award to a specific number, the Court of Appeal sent the case back to the trial court to determine the constitutional maximum.


March 12, 2020

Court of Appeal reduces $13.8 million punitive damages award to $5.7 million in discrimination case (Moland v. McWane)

In this employment case involving claims of racial discrimination and wrongful termination, a jury awarded $13.8 million in punitive damages and $2.87 million in compensatory damages, a ratio of 4.8 to 1.  On appeal, the defendant argued that the punitive damages should be vacated entirely or at least reduced as excessive.

The California Court of Appeal (Second District, Division Seven) held in an unpublished opinion that an award of punitive damages was justified because the evidence, viewed in the light most favorable to the plaintiff, could support an inference that the defendant acted with extreme indifference to the plaintiff's right to be free of racial discrimination in the workplace.

Turning to the question of excessiveness, the court analyzed the three BMW/State Farm guideposts: (1) the reprehensibility of the conduct, (2) the ratio of punitive to compensatory damages, and (3) the difference between the punitive damages award and civil penalties authorized by the Legislature for similar misconduct.

1.  The court found several indicators of a higher level of reprehensibility: the defendant's acts affected the plaintiff's emotional and mental health (i.e., did not inflict purely economic harm), the defendant should have known the plaintiff would suffer emotional harm, and the plaintiff was financially vulnerable.  But the court rejected the plaintiff's argument that the level of reprehensibility was enhanced by the fact that the defendant made multiple decisions that harmed the plaintiff.  The court explained that discrimination against the plaintiff was a single instance of wrongdoing, and in the absence of further instances against the plaintiff or others, the defendant could not be treated as a repeat offender.

2.  When analyzing the ratio of punitive damages to compensatory damages, the court rejected the defendant's argument that a 1 to 1 ratio should be the constitutional maximum in light of the substantial noneconomic damages (about $2.5 million of the total compensatory damages award).  The court held that the ratio can exceed 1 to 1 when the noneconomic damages and the reprehensibility of the defendant's conduct are both high.  Relying heavily on a Second Circuit decision, the court concluded that a limit of 2 to 1 is the constitutional maximum in a case of this nature.

3.  Finally, the court compared the punitive damages award to a now-repealed $150,000 cap on administrative fines for claims before the California Fair Employment and Housing Commission.  The court found that the cap weighed in favor of an award less that the jury's verdict, but did not mandate an award below a 2 to 1 ratio.

Accordingly, the court ordered the trial court to modify the judgment to reduce the punitive damages award to $5.8 million, roughly double the amount of compensatory damages.  Appropriately, the court did not give the plaintiff the option of rejecting the lower amount in favor of a new trial.

Ninth Circuit affirms $2.5 million punitive damages award in insurance bad faith case (McClure v. Country Life)

The unpublished opinion affirms $2.5 million in punitive damages and $1.29 million in compensatory damages in an insurance bad faith case.  The analysis is sparse, as usual for a memorandum disposition.  The court affirms the punitive damages because the plaintiff presented sufficient evidence that the defendant acted with an "evil mind" under Arizona punitive damages law.  Apparently the defendant did not argue that the punitive damages were excessive.