April 22, 2010

Wyeth v. Scroggin Cert. Petition: Are Partial Retrials On Punitive Damages Unconstitutional?

We previously blogged about Wyeth v. Scroggin, in which a jury awarded $27 million in punitive damages—the Eighth Circuit found evidentiary error occurred during the punitive damages phase of the trial, and ordered a partial new trial limited to the issue of punitive damages. Wyeth (now owned by Pfizer) has filed a petition for certiorari, asking the U.S. Supreme Court to decide whether a new trial limited to punitive damages violates the Seventh Amendment. (See the Supreme Court's on-line docket for this petition.)

This is an issue that is near and dear to our hearts. As appellate lawyers who routinely handle appeals involving punitive damages, we have often had occasion to explain that appellate courts should order a complete new trial if the court finds error that affected a punitive damages award, because partial new trials limited to punitive damages are usually unfair.

Case law holds that limited new trials are appropriate only in limited circumstances. For example, the U.S. Supreme Court held in Gasoline Products Co. v. Champlin Refining Co. (1931) 283 U.S. 494, 500, that courts should not order retrials limited to a single issue unless "it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice." Similarly, the California Supreme Court held in Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 776 that appellate courts should not order a limited retrial on punitive damages unless punitive damages "can be separately tried without such confusion or uncertainty as would amount to denial of a fair trial."

In practice, new trials limited to the issue of punitive damages are unworkable in most cases. A jury must base its punitive damages award on the same conduct that supported liability and supported a finding of malice, oppression or fraud; otherwise, the defendant will be improperly punished for conduct that was not tortious. Typically, the plaintiff points to a variety of conduct by the defendant to establish a tort, but the verdict form does not break down the jury’s findings in a way that shows which particular acts occurred, and which satisfied the elements of the claimed tort. Thus,there is no way for a jury in a limited retrial to know what conduct the first jury found to be tortious and/or malicious. If the second jury is told to assume that the first jury resolved every factual dispute in favor of the plaintiff's arguments, a limited retrial creates a real risk that the second jury will impose punishment for a subset of conduct that the first jury did not find to be tortious or malicious. To avoid this unfairness, courts should resist the temptation to order limited retrials except in the rare circumstance where it can be determined from the first trial exactly what conduct the second jury should be punishing.

We'll keep an eye on this petition and the Supreme Court's ruling on it. We don't yet have a link to the cert. petition, but here's a link to an amicus brief in support of the petition, filed by The Defense Research Institute (DRI).