April 11, 2008

Arpin v. United States: Judge Posner Applies Due Process Analysis from Punitive Damages Cases to Non-Economic Damages

Judge Posner issued an opinion agreeing that the ratio jurisprudence has applications beyond punitive damages. In a case involving excessive compensatory damages, he suggests using a ratio between loss of consortium damages and the other damages awarded to the plaintiff. He also suggests that the ratio should be calibrated by canvassing other comparable awards:

“Courts may be able to derive guidance for calculating damages for loss of consortium from the approach that the Supreme Court has taken in recent years to the related question of assessing the constitutionality of punitive damages. The Court has ruled that such damages are presumptively limited to a single-digits multiple of the compensatory damages, and perhaps to no more than four times those damages. State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408, 424-25 (2003); see, e.g., International Union of Operating Engineers, Local 150 v. Lowe Excavating Co., 870 N.E.2d 303, 320-22 (Ill.2006). The first step in taking a ratio approach to calculating damages for loss of consortium would be to examine the average ratio in wrongful-death cases in which the award of such damages was upheld on appeal. The next step would be to consider any special factors that might warrant a departure from the average in the case at hand. Suppose the average ratio is 1:5—that in the average case, the damages awarded for loss of consortium are 20 percent of the damages awarded to compensate for the other losses resulting from the victim's death. The amount might then be adjusted upward or downward on the basis of the number of the decedent's children, whether they were minors or adults, and the closeness of the relationship between the decedent and his spouse and children. In the present case the first and third factors would favor an upward adjustment, and the second a downward adjustment because all of Arpin's children were adults when he died.
We suspect that such an analysis would lead to the conclusion that the award in this case was excessive, cf. Brown v. Arco Petroleum Products Co., 552 N.E.2d 1003, 1010 (Ill.App.1990); Bart v. Union Oil Co., 540 N.E.2d 770, 773 (Ill.App.1989), but it is not our place to undertake the analysis. It is a task for the trial judge in the first instance, though we cannot sustain the award of damages for loss of consortium on the meager analysis in the judge's opinion; it does not satisfy the requirements of Rule 52(a). We have suggested (without meaning to prescribe) an approach that would enable him to satisfy them."

It will be interesting to see if this analysis works in California and other jurisdictions. There is certainly support for the argument in United States Supreme Court cases and California cases. (Cf. State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 426 [123 S. Ct. 1513, 155 L.Ed.2d 585] [emotional distress damages include a punitive component]; Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1189 [same]; Gober v. Ralphs Grocery Co. (2006) 137 Cal.App.4th 204, 222-223 [same].) One case, though, seems to have rejected such an approach. (See Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1080-1083 [sanctioning appellant for bringing a frivolous appeal by arguing that a noneconomic damage award was excessive in light of the modest amount of economic damages awarded].)