Georgia Jury Awards $30 Million in Punitive Damages Against Ford

The Atlanta Journal-Constitution is reporting that a Georgia jury has awarded $30 million in punitive damages and $10 million in compensatory damages against Ford Motor Co. in a case involving an alleged defect in a 2004 Ford Explorer. The plaintiff claims she put the car in park and got out to mail a package when the vehicle suddenly shifted into reverse, backing into her and fracturing her spine.

Ford is taking a beating in punitive damages litigation lately, between this award and the California Supreme Court's decision to dismiss review in Buell-Wilson, which effectively affirmed a $55 million punitive damages award.

Santa Barbara Jury Awards $2.3 Million in Punitive Damages

Noozhawk.com reports that a Santa Barbara jury has awarded $14 million in compensatory damages and $2.3 million in punitive damages to the parents of a 4-year-old boy who drowned in a swimming pool at a summer camp operated by the defendants. Counsel for one of the defendants, Cal-West, stated that the punitive damages award was improper because the drowning was accidental. Presumably, he intends to raise that argument in post-trial motions and on appeal.

Law Profs Contend Their Statistical Studies Were Misused By the U.S. Supreme Court in Exxon Valdez Case

Cornell law professors Theodore Eisenberg, Michael Heise, and Martin T. Wells, who have written a number of articles applying statistical analysis to empirical data about civil litigation, have posted a paper on SSRN entitled "Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court’S Decision in Exxon Shipping Co. v. Baker." The professors contend that Justice Souter improperly used their prior statistical studies to support his majority opinion holding that punitive damages cannot exceed the amount of compensatory damages in cases arising under federal maritime law. Here's the abstract:

Abstract:

Exxon Shipping Co. v. Baker acknowledged what virtually all methodologically
sound punitive damages research shows. The Supreme Court relied in part on an
article by the present authors and others to state that empirical studies undercut the most audible criticism of punitive damages and that no mass of runaway punitive awards existed. Paradoxically, the Court simultaneously expressed concern about jury predictability based on a high mean and standard deviation in the punitive-compensatory ratio published in our article. The Court therefore reduced a $2.5 billion punitive award relating to the Exxon Valdez oil spill to $500 million to implement a 1:1 punitive-compensatory ratio and stated that “the constitutional outer limit may well be 1:1.” This article shows that our empirical findings relied on by the Court do not support the unpredictability concern or widely applying the limiting ratio. The high mean and standard deviation are artifacts of not accounting for the key variable that explains punitive awards - the compensatory award. Stratifying the mean and standard deviation of the punitive-compensatory ratio by the level of the compensatory award shows that the ratio is reasonably stable in high award cases and significantly and explicably more variable in low award cases. Basing doctrine on summary statistics that combine these heterogenous [sic] distributions is not statistically supportable. The award reduction in Exxon Shipping may have promoted consistency with other high compensatory award cases but the 1:1 principle the case hints at is not statistically supportable across the broad range of compensatory awards, and could contribute to an inability to tailor punitive awards to the facts and circumstances of particular cases.

Lopez v. Bimbo Bakeries: Court of Appeal Affirms $2 Milllion Punitive Damages Award

The California Court of Appeal (First District, Division Four) issued this unpublished opinion last week, affirming a $2 million punitive damages award in an employment case involving compensatory damages of $340,700 (a ratio of 5.87 to 1).

This punitive damages discussion goes into more detail than the typical unpublished opinion. From my perspective, these are the two most interesting aspects of the court's analysis:

1. The court stated that the clear and convincing evidence standard, which applies to punitive damages determinations, "does not alter our standard of review." That holding is directly contrary to published opinions (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847 [“since the jury’s findings were subject to a heightened burden of proof, [this court] must review the record . . . in light of that burden’”].) Admittedly, there are cases going both ways on this issue. But I'm a little disappointed to see the Court of Appeal deciding this issue in an unpublished opinion without even acknowledging the split of authority. The California Supreme Court granted review last year in Harvey v. Sybase to resolve the split on this issue, but the court later dismissed review after the parties settled. Presumably the Supreme Court still views this as a review-worthy issue and will take up another case on this subject, perhaps even this one.

2. The court concluded that the amount of the punitive damages award, and the ratio of nearly six-to-one, was not excessive under the Due Process Clause. In reaching that holding, the court did not mention the U.S. Supreme Court's statement in State Farm v. Campbell that the ratio should be low, perhaps only one-to-one, in cases involving substantial compensatory damages. Other California appellate panels (and courts in other jurisdictions) have followed the Supreme Court's direction on that point and have reduced punitive damages awards down to a single-digit level. (See my Washington Legal Foundation paper discussing a possible nationwide trend on this issue.) The $340,700 compensatory damages award in this case is well in excess of the amount that other courts have found to be "substantial" within the meaning of Campbell. Perhaps the Court of Appeal in this case thought the defendant's conduct was so reprehensible that it justified an award well above the 1-to-1 ratio, notwithstanding the Supreme Court's reasoning in Campbell. If so, it would have been nice for the court to acknowledge this aspect of Campbell and explain why it decided not to follow the Supreme Court's reasoning.

The opinion also addresses other issues, such as the sufficiency of the evidence to satisfy California's "managing agent" requirement, and the relevance of the defendant's $826 million net worth. I'm not going to make this blog post any longer by summarizing the court's holdings on those points, but the opinion is definitely worth a read, especially for anyone handling a punitive damages appeal before the First District, Division Four.

Op-Ed Contends That Punitive Damages Are Insurable In California

Attorney Kirk Pasich has an op-ed in the Los Angeles Daily Journal (subscription required) arguing that, under California law, insurers may be obligated to indemnify their policyholders for punitive damages awards. While Mr. Pasich certainly deserves points for creativity, his argument runs afoul of settled California law.

California Insurance Code section 533 states that an insurer is not liable for the willful acts of its insured. The California Supreme Court, interpreting section 533, has unequivocally held that indemnification of punitive damages "is disallowed for public policy reasons." (Peterson v. Superior Court (1982) 31 Cal.3d 147, 159.) The Supreme Court has never overruled or even questioned its decision in Peterson, which is binding in all California courts.

Despite the clear rule established in Peterson, Mr. Pasich argues that California law is unsettled. He relies on other cases applying section 533 outside the punitive damages context. He notes that, in those cases, courts have held that section 533 does not bar a corporate defendant's claim for indemnification from an insurer where the corporate defendant is held vicariously liable for compensatory damages arising from the wilful or intentional acts of its employee or agent, except that it does bar indemnification by the insurer where corporate management authorized or ratified the employee's intentional acts. Relying on these cases, Mr. Pasich contends that a corporate insured may be entitled to insurance coverage for punitive damages, so long as the corporation's management has not authorized or ratified the conduct that gave rise to the punitive damages.

Regular readers of this blog can probably spot the flaw in Mr. Pasich's reasoning already: under California law, punitive damages cannot be awarded against a corporation unless corporate management authorized or ratified the wrongful conduct. (See Civil Code section 3294, subdivision (b).) Thus, the scenario in which Mr. Pasich says indemnity would be available - - an award against a corporate employer without a finding of authorization or ratification by corporate management - - simply cannot occur under California law. (See Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1154-1155 [noting that Civil Code section 3294(b) "does not authorize an award of punitive damages against an employer for the employee's wrongful conduct. It authorizes an award of punitive damages against an employer for the employer's own wrongful conduct"].)

Mr. Pasich's opinion notwithstanding, corporations in California should not expect indemnity for punitive damages awards unless the California Supreme Court overrules its opinion in Peterson.

Dole Wins Dismissal of Banana Litigation

Bloomberg reports that Judge Victoria Chaney of the Los Angeles County Superior Court has dismissed the claims against Dole by Nicaraguan banana workers. (See our prior posts about this litigation here here and here.) The Bloomberg story says Judge Chaney found “deliberate and egregious misconduct” by the plaintiffs' lawyers and described the case as "a blatant extortion of the defendants.” What began as a claim for millions of dollars in punitive damages may end up as a disciplinary proceeding before the state bar.

Hat tip: WSJ Law Blog.

UPDATE: AmLaw Daily has posted a link to a .pdf of the hearing transcript.

The Largest Punitive Damages Award to Survive Appeal in California?

When the California Supreme Court dismissed review yesterday in Buell-Wilson v. Ford, it may have set a new high for punitive damages in California. Unless the Court of Appeal has a dramatic change of heart or the U.S. Supreme Court intervenes, it appears that Ford will have to pay $55 million in punitive damages, which appears to be the largest punitive damages award to survive appeal in California.

To our knowledge, these five cases represent the largest punitive damages awards that California appellate courts have allowed to stand:

1. Buell-Wilson v. Ford (2008) [depublished]: $55 million

2. Boeken v. Philip Morris (2005) 127 Cal.App.4th 1640: $50 million

3. Rufo v. Simpson (2001) 86 Cal.App.4th 573: $25 million

4. Vann v. Travelers (1998) [unpublished]: $25 million

5. Paine Webber v. Fireman's Fund (1997) [unpublished] $21 million

It's possible there may be some others we don't know about, especially since the older unpublished opinions are not available on Westlaw, but based on our firm's experience in handling these types of cases, we're fairly confident this list is accurate. If anyone knows of a case that's missing from the list, please let us know. (Keep in mind that we're talking about the post-appeal numbers; we know that California juries have awarded verdicts that would top anything on this list, but those awards did not survive appeal.)

Cal. Supreme Court Dismisses Review in Buell-Wilson v. Ford

The California Supreme Court has changed its mind about reviewing the $55 million punitive damages award in Buell-Wilson v. Ford. The Court issued an order today dismissing review, according to the court's online docket.

As we noted in our prior post about this case, the plaintiff in Buell-Wilson moved to dismiss review in light of the U.S. Supreme Court's decision to dismiss certiorari in Philip Morris v. Williams (Williams III). The Supreme Court could have used Buell-Wilson to decide some important issues raised by the petition which had nothing to do with the issue in Williams III. But the Supreme Court decided to remand the case back to the Court of Appeal without deciding anything.

Although the Supreme Court won't be addressing any of the issues raised by Buell-Wilson, the Supreme Court's grant of review has an important consequence for California punitive damages litigation. When the Supreme Court granted review, the Court of Appeal's published opinion was automatically de-published, preventing litigants from citing that opinion in any California court. (See California Rules of Court, rules 8.1105(e) and 8.1115(a).) Even though the Supreme Court dismissed review, the Court of Appeal's opinion in Buell-Wilson remains depublished and uncitable. That's good news for other defendants in products liability cases in California, because the opinion contained some language making it easier for plaintiffs to recover punitive damages in such cases. But the depublication of Buell-Wilson is cold comfort for Ford, which must now pay the $55 million punitive damages award upheld by the Court of Appeal.

UPDATE: Cal Biz Lit blogs about the dismissal here.

Dole Accuses Attorneys of Fraud In Banana Litigation

The Associated Press (via the Sacramento Bee) is reporting on hearings that took place today in an ongoing punitive damages case in Los Angeles. The plaintiffs claim they became sterile when they were exposed to pesticide on a Nicaraguan banana farm. The defendant, Dole Fresh Fruit Co., is accusing the plaintiffs' attorneys of recruiting clients to make false claims.

As we noted in a prior post, some of the plaintiffs in this litigation won a $2.5 million punitive damages award back in 2007, but the victory was short-lived. Judge Victoria Chaney of the Los Angeles Superior Court vacated the punitive damages award, ruling that Dole couldn't be punished for injuries that incurred in a foreign country. Last month Judge Chaney threatened to dismiss other similar cases.

Now things have gotten even worse, with Judge Chaney holding hearings to determine whether the two attorneys for the plaintiffs knowingly brought false claims. According to the AP Story, Dole alleges that the two attorneys paid witnesses and cajoled plaintiffs into saying they had worked on banana plantations and been rendered sterile. Dole says the attorneys showed videos to the men depicting life on the plantations to help them tell their stories, falsified sterility documents, and hid evidence that some of the men went on to sire children.

UPDATE: Cal. Biz Lit blogs about this story here.

Cal. Supreme Court Requests Supplemental Briefing in Roby v. McKesson

The California Supreme Court has asked the parties in Roby v. McKesson to address the following question:

Are the jury's compensatory damages verdicts so ambiguous as to
whether there is overlapping recovery as to require a remand to the trial
court for a new trial limited to determining the amount of compensatory and
punitive damages?

Roby has been pending before the California Supreme Court since April 2007. The issues before the court are primarily questions of employment law, but they also include a punitive damages issue. Specifically, the petitioner contends that the Court of Appeal erred when it determined that a $15 million punitive damages award was excessive and ordered the award reduced to $2 million, roughly 1.4 times the compensatory damages. The question that the Supreme Court is now posing suggests that the court may order a new trial in that case without deciding the punitive damages issue.

A very similar issue is also before the California Supreme Court in Buell-Wilson v. Ford. In that case, the Court of Appeal took the opposite approach from Roby; the court refused to reduce a punitive damages award to a 1-to-1 ratio, notwithstanding the U.S. Supreme Court's admonition in State Farm v. Campbell that a 1-to-1 ratio may be the outer limit in cases involving substantial compensatory damages. The defendant petitioned for review on that issue.

There is a chance, however, the California Supreme Court won't address this issue in Buell-Wilson either. As we have noted, the plaintiff in Buell-Wilson has moved to dismiss review based on the U.S. Supreme Court's decision to dismiss certiorari in Williams III.

Interestingly, the lawyer who represents the defendant in Roby also represents the plaintiff in Buell-Wilson. He may find himself on opposite sides of the same issue if the Supreme Court actually hears both cases on the merits. He will probably have to argue that, even though both cases involve substantial compensatory damages, the facts of Buell-Wilson permit a ratio in excess of 1-to-1 while the facts of Roby do not.

$1 Million in Punitive Damages Against Blogger

Overlawyered has this story about a South Carolina blogger who was hit with a $1.8 million judgment, including $1 million in punitive damages, for making defamatory blog posts.

Yikes! Be careful what you say, fellow bloggers. The award isn't quite as scary as it sounds, however, because the defendant apparently didn't bother to show up to defend himself. As some commenters to the Overlawyered post have pointed out, it's not all that surprising for an unopposed lawsuit to result in a large judgment.

California Supreme Court Denies Review in Food Pro v. Farmers

Last December we blogged about the Court of Appeal's published opinion in Food Pro v. Farmers, which rejected a plaintiff's claim for punitive damages in an insurance bad faith case.

The insurance company petitioned for review to the California Supreme Court (see the court's online docket here). Obviously they weren't challenging the opinion's punitive damages analysis; they were challenging the portion of the opinion in which the Court of Appeal concluded (contrary to the trial court's ruling) that the insurer had a duty to defend its insured from a third party lawsuit. The Supreme Court denied review yesterday, according to the Supreme Court's conference results.

Although the petition for review did not address the punitive damages issue, the denial of review is relevant to this blog. If the Supreme Court had granted review, the entire opinion, including the punitive damages discussion, would have been vacated (and therefore not citeable in California courts).

Another Editorial Criticizing Dismissal of Cert in Williams III

Today's LA Times contains an editorial entitled The Supreme Court and Law Left Hanging. The editorial makes the same point as this editorial we blogged about last week, namely, that the Supreme Court should have used Williams III as a vehicle for clarifying and strengthening the limits on excessive punitive damages. Neither editorial mentions that the excessiveness issue was not before the court in Williams III because the Supreme Court declined to consider that issue when it granted certiorari last June.

Sukumar v. Sukumar: Court of Appeal Reaffirms Rule that Punitive Damages Cannot Exceed 10 Percent of Defendant's Net Worth

The Fourth Appellate District, Division One, issued this unpublished opinion last week affirming a trial court order that reduced a $5 million punitive damages award to $1.4 million.

The trial court reduced the punitive damages based on California's longstanding rule that punitive damages generally cannot exceed 10 percent of the defendant's net worth. (See Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1593.) On appeal, the plaintiff challenged that ruling on several grounds.

First, the plaintiff argued that trial court failed to consider whether factors other than the defendant’s net worth, such as future dividend income, made it possible for the defendant to pay the judgment. The Court of Appeal ruled that, although the Supreme Court has declined to adopt a rigid rule that net worth is the only appropriate measure of a defendant's ability to pay punitive damages, net worth is the appropriate measure in the vast majority of cases. The few cases where courts looked to other measures involved exceptional circumstances. (See Zaxis Wireless Communications, Inc. v. Motor Sound Corp. (2001) 89 Cal.App.4th 577, 582-583 [defendant's negative net worth was due primarily to accumulated depreciation and a note to its sole shareholder, while it had annual sales exceeding $250,000,000, cash of $19,000,000, and a $50,000,000 line of credit, evidencing its ability to pay punitive damages award of $300,000]; Rufo v. Simpson (2001) 86 Cal.App.4th 573, 579, 621, 623-624 [reprehensibility of defendant's conduct (i.e., two deliberate, vicious murders) provided exceptional circumstances].)

Second, the plaintiff argued that the trial court should have viewed the defendant's testimony about his own net worth with suspicion. The Court of Appeal rejected that argument on the ground that the plaintiff bore the burden of proving that the defendant had a greater net worth, and she failed to carry that burden. For example, while defendant owned an apartment, plaintiff failed to rebut defendant’s evidence that defendant owed more money on the apartment than it was worth.

Third, the plaintiff argued that the 10 percent rule should not apply when the defendant's conduct is especially reprehensible. The Court of Appeal rejected that argument as a matter of law:

[Plaintiff] does not cite any apposite case showing, or otherwise persuade us,
such conduct is so reprehensible that the general rule limiting punitive
damages to 10 percent of a defendant's net worth should not apply. In any
event, as the California Supreme Court stated, a punitive damages "award can
be so disproportionate to the defendant's ability to pay that the award is
excessive for that reason alone" regardless of the reprehensibility
of the defendant's conduct. (Adams v. Murakami [(1991)] 54 Cal.3d [105,] 111.)

Full disclosure: Horvitz & Levy participated in this case, representing one of the defendants on appeal (the defendant who was subject to the punitive damages award).

Plaintiff Asks California Supreme Court to Dismiss Review in Buell-Wilson v. Ford

The plaintiff in Buell-Wilson has asked the California Supreme Court to dismiss review in that case. (See the court's online docket.)

The court agreed to review Buell-Wilson last year but deferred briefing pending the U.S. Supreme Court's decision in Williams III. As we noted last week, the U.S. Supreme Court's decision to dismiss certiorari in Williams III without deciding the case could cause the California Supreme Court to dimiss review in Buell-Wilson as well. On the other hand, the petition in Buell-Wilson raises recurring issues that are not related to Williams III, so perhaps the court will call for briefing on the merits in Buell-Wilson notwithstanding the dismissal in Williams III.

Amended 9th Circuit Order Addresses Issue Raised on This Blog

Late last year we blogged about the Ninth Circuit's published order in Irvin v. Southern Union, in which the court held that a $4 million punitive damages award was excessive, and that any award higher than $1 million (three times compensatory damages) would violate due process.

In a follow-up post, we noted that the Ninth Circuit seems to have a created an intra-circuit split on the proper remedy for an excessive punitive damages. We observed that, in the Leatherman Tool Group opinion in 2002, the Ninth Circuit seemingly adopted the Seventh Circuit's position that a plaintiff is not entitled to a retrial when the court determines that a punitive damages is excessive. Instead, the court should simply reduce the award to the constitutional maximum and modify the judgment accordingly. We also observed, however, that the court took the opposite approach in its 2005 Planned Parenthood opinion, which afforded the plaintiff a new trial. Then in its 2006 opinion in Exxon Valdez, the court reverted to the approach of Leatherman Tool Group, before changing course again with the Irvin order in 2008.

Subsequent to our blog posts, the Ninth Circuit has now modified the order in Irvin, adding a footnote to address these seeming inconsistencies in its approach. The footnote cites the same cases discussed in our blog post - Leatherman Tool Group, Planned Parenthood, and Exxon Valdez - and attempts to reconcile these opinions by explaining that the court "decide[s] on a case-by-case basis whether to remand for a new trial or simply order a remittitur." The court did not explain exactly what criteria would lead the court to choose a particular approach in a particular case. The court said it would allow a retrial in Irvin because the plaintiff might introduce additional evidence at a new trial that could affect the calculation of the proper ratio between punitive damages and compensatory damages. But if that reasoning is valid, plaintiffs would be entitled to a retrial in virtually every case, because there is always a theoretical possibility that the plaintiff could present some new evidence at the retrial.

Perhaps the more principled approach is the one adopted by the Seventh Circuit, under which a plaintiff is never entitled to a retrial. If the plaintiff had a full and fair opportunity to present all of its evidence the first time around, why should it be given another bite at the apple? (See., e.g., Kelly v. Haag (2006) 145 Cal.App.4th 910, 919-920 [plaintiff who fails to present evidence to support punitive damages award is not entitled to a retrial].)

Shakespeare, the Supreme Court, and Punitive Damages

Legal Times (via Law.com) has this amusing report about a theater production that took place this evening involving Justices Ginsburg, Alito, and Breyer. Those three, and five lower court judges, presided over a mock argument in a production called Malvolio's Revenge, based on Twelfth Night. The premise is that Malvolio has won a $10 million punitive damages verdict for false imprisonment and the judges must decide if the award is constitutional.

Click here for the event's official website.

UPDATE: The BLT (blog of Legal Times) reports that the court ruled against Malvolio and vacated his $10 million punitive damages award.

"Court Missed Opportunity to Limit Punitive Damages"

So says this Reading Eagle editorial about the Supreme Court's dismissal of cert. in Williams III.

Oregon Drops Punitive Damages Claim in Order to Save Jobs

The state of Oregon has settled its claim for $200 million in punitive damages against truck manufacturer Freightliner, according to the Statesman Journal and OregonLive.com.

The settlement ends a dispute that raised very interesting questions about the consequences of "split-recovery" statutes that authorize a state to recover a portion of any punitive damages award. In this case, which we discussed last February, German truck manufacturer Man AG sued Freightliner in Oregon state court. Man AG won an $850 million jury verdict, including $350 million in punitive damages. Under Oregon law, the state becomes a creditor on any punitive verdict when entered, and is entitled to 60 percent of any punitive award.

Before the state could collect its cut, the parties settled and Man agreed to drop the punitive damages portion of the verdict. The trial court vacated the original judgment and dismissed the case pursuant to the settlement, but the state intervened and appealed from the judgment of dismissal, arguing that the parties could not bargain away the state's 60 percent share of the award. The Court of Appeals agreed that the state had standing to proceed on the merits of the appeal. The Oregon Supreme Court then agreed to hear the issue of the state's standing.

In the meantime, as the global economy worsened and truck sales declined, the City of Portland and Multnomah County complained to the state that the lawsuit might force Freightliner to close its plant in Portland. Despite these objections, the state pressed on with its claims. Sure enough, Freightliner announced in October of last year that it had decided to close the plant, as reported by the Portland Tribune. A spokesman for the state said the closure had nothing to do with the state's $200 million claim, but the general counsel of Frieightliner disagreed, saying company executives were "deeply disappointed that Oregon would sue us while other states are courting us."

Apparently, the state had a change of heart, and agreed to settle in order to keep the plant open. The state gave up its $200 million claim in exchange for a donation of $150,000 to a crime victims fund, but if Freightliner closes its plant, it has to pony up another $300,000 to the state.

We can expect more litigation like this in states that have adopted split-recovery statutes. These laws may turn out to have a variety of unintended consequences.

Hat tip: Robin's Nest.

Birts v. The Estate Plan: $10 Million Punitive Damages Award Entered on Default of Living Trust Seller

A Texas law journal (The Southeast Texas Record) reported yesterday that a federal judge in Arkansas has entered a $16 million default judgment—including $10 million in punitive damages—against The Estate Plan, a company that sells living trusts. The plaintiffs brought a class action alleging that The Estate Plan was exploiting senior citizens and offering unsound financial and legal advice in a manner giving rise to claims of fraud, unauthorized practice of law, negligence, breach of fiduciary duty, and conspiracy. The March 16 default judgment in Birts, et al v. The Estate Plan (case 4:08-cv-04047-HFB) also reportedly requires the defendant to correct misrepresentations in the materials that it provides to consumers and to engage in a public information campaign.

Public outrage over financial shenanigans like this will likely result in a continuing stream of big-ticket punitive damages awards.

New Zealand High Court Mulls Punitive Damages Down Under

According to a report on Voxy.co.nz, the high court of New Zealand recently heard arguments in a case involving the standards for imposing punitive damages under that country’s law. Plaintiff Susan Couch sued the New Zealand Department of Corrections on claims arising out of serious injuries sustained at the hands of a prison inmate who was granted parole and proceeded on a highly publicized rampage known as the Mt Wellington-Panmure RSA killings. Couch claims the department acted with “outrageous and flagrant” disregard for her safety. The court will address whether Couch’s claim for exemplary damages can go forward on that basis, without any allegation that the defendant made a conscious decision to act wrongfully.

New Zealand has a no-fault accident compensation system, and the Deputy Solicitor-General John Pike reportedly argued to the court that allowing punitive damages could undermine the compensation system under the circumstances presented in Couch’s case.

Signs of efforts to expand the availability of punitive damages around the globe could be viewed as an unwelcome American export. This blog has reported previously (e.g., here, here, here and here) on other foreign jurisdictions’ attempts to refine their punitive damages jurisprudence, and on attitudes toward U.S. punitive damages. As noted by Professor Helmut Koziol (the author of a Louisiana Law Review article we’ve described), the American system of punitive damages “cause[s] continential Europeans to shake their heads.”

Marsten v. Walgreens: Illinois Appellate Court Vacates $25 Million Punitive Damages Award

The Daily Herald has a story about an Illinois appellate opinion vacating a $25 million punitive damages award because the plaintiff died. Apparently, Illinois law differs from California law on this point. In California, when a plaintiff dies, the plaintiff's estate can recover punitive damages, although the plaintiff's heirs cannot recover punitive damages in a wrongful death action. (See Code Civ. Proc., §§ 377.34 [authorizing in a survival action the recovery of damages “the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages”], 377.61 [precluding in a wrongful death action “damages recoverable under Section 377.34”].) Last year we blogged about a case in which a federal district court vacated a $5 million punitive damages award that was improperly awarded on a wrongful death claim.