June 3, 2009

Rex Heeseman Pens Another Op-Ed on Punitive Damages

Rex Heeseman, a Los Angeles County superior court judge, frequently writes op-eds on punitive damages for the Los Angeles & San Francisco Daily Journal. His latest piece, "Sustaining Damages" (subscription required) appeared in this Monday's addition of the DJ.

Judge Heeseman recaps the U.S. Supreme Court's recent dismissal of certiorari in Philip Morris v. Williams (Williams III) and the California Supreme Court's dismissal of review in Buell-Wilson. (To read our posts on those dismissals, click here and here.) Judge Heeseman predicts that, because those questions raised questions about punitive damages jury instructions that were not resolved by the high courts, we can expect a series of upcoming punitive damages decisions focusing on instructional issues. He predicts that plaintiff's lawyers will cite the Oregon Supreme Court's opinion in Williams III as support for the proposition that a defendant cannot assert error in the refusal of a jury instruction on punitive damages unless the defendant's requested instruction was "correct in all respects." Judge Heeseman notes that the California Court of Appeal adopted a variation of that argument in Buell-Wilson.

In my view, California plaintiffs will have a very difficult time convincing appellate courts to adopt Oregon's "correct in all respect" standard. Two recent published opinions have already rejected that argument. In Bullock v. Philip Morris and Holdgrafer v. Unocal, the courts held that a trial court committed reversible error by refusing to instruct the jury, under Philip Morris v. Williams (Williams II), that the jury should not punish the defendant for harm to nonparties. In both cases, the court expressly rejected the plaintiffs' argument that the defendant had waived its rights under Williams II by proposing an instruction that was somehow defective. The courts held that, even if the defense instructions were not perfect, they were sufficient to invoke the defendant's right to the protections guaranteed by the Due Process Clause. (See, e.g., Holdgrafer, typed opn. at p. 28 ["While Unocal's proposed instruction does not squarely present the relevant principle enunciated in Philip Morris, it would have properly informed the jury that Unocal could not be punished for the impact its alleged misconduct had on others who were not parties to the litigation"].)

Bullock and Holdgrafer were both issued before the contrary decision in Buell-Wilson. The Supreme Court denied the plaintiffs' petitions for review in Bullock and Holdgrafer, but granted the defendant's petition in Buell-Wilson. The result is that the Bullock and Holdgrafer opinions are citeable, while Buell-Wilson is not. Thus, the current state of the law in California is contrary to Oregon's "correct in all respects" rule. Trial courts throughout the state are bound to follow Bullock and Holdgrafer, and a plaintiff asserting the "correct in all respects" rule will have to convince an appellate court to reject both of those decisions.