January 30, 2008

More on Bullock v. Philip Morris

This 60-page opinion covers a lot of ground, but the core of the court's rationale for reversing the $28 million punitive damages award is that the trial court erred when it refused to instruct the jury, "You are not to impose punishment for harms suffered by persons other than the plaintiff before you." By requesting that instruction, Philip Morris invoked the due process protection recognized by the U.S. Supreme Court in Philip Morris v. Williams, namely, that the Due Process Clause forbids states from imposing punitive damages to punish a defendant for injury inflicted on nonparties. Contrary to the arguments of Bullock and her amici, Philip Morris was not required to include in its instruction a statement that the jury could consider harm to others in evaluating the reprehensibility of the conduct that harmed Bullock. Philip Morris had no duty to qualify its proposed instruction to encompass a rule of law favorable to Bullock - - each party in a civil case has a duty to propose instructions that accurately state the law supporting its own theory of the case.

Interestingly, the opinion states in a footnote that although Philip Morris's proposed instruction was sufficient, the official California jury instructions (also known as "CACI") should be modified to more accurately reflect the holding of Williams. The court's criticism of the CACI instructions is notable because the author of the Bullock opinion, Justice Walter Croskey, is the current chair of the Judicial Council's Advisory Committee on Civil Jury Instructions, which is responsible for keeping the CACI instructions up to date. That committee modified the CACI instructions just a few months ago to reflect the holding of Williams. If I recall correctly, Justice Croskey recused himself from that process because the Bullock case was pending before him. Now Justice Croskey says in his opinion that the committee didn't go far enough. The opinion says the instructions could do a better job of conveying the distinction that a jury may consider evidence of harm to others for the purpose of determining reprehensibility, but not for the purpose of punishing the defendant directly for harm caused to others. I'm going to go out on a limb and predict that the next set of proposed revisions to the CACI instructions will include a modification based on the Bullock opinion.