June 4, 2010

W. Va. Supreme Court Denies Rehearing of Punitive Damages Award Against DuPont, Citing "Fact" Established at Oral Argument

We've been following this case, which involved a $196.2 million punitive damages award against DuPont in West Virginia, for a while. The case has taken some interesting twists and turns, but this latest installment may be the most bizarre.

When we last checked in, the W. Va. Supreme Court had reversed the judgment and remanded for further proceedings to determine whether the claim was barred by the statute of limitations. The court also ordered that, if the claims are not barred altogether, then the punitive damages should be reduced by $20 million to reflect payments DuPont had already made, and then further reduced 40 percent. The court determined that 40 percent of the punitive damages were attributable to the plaintiffs' claims for medical monitoring, and the court determined that medical monitoring claims could not support a punitive damages award because punitive damages can only be based on "actual harm."

That brings us to the latest stage of the proceedings. DuPont petitioned for rehearing, arguing that the punitive damages should be reduced by 70 percent, rather than 40 percent, because the lower court had allocated 70 percent of the punitive damages to the medical monitoring claims.

The Supreme Court denied DuPont's petition, finding that DuPont had waived this point by failing to raise it during oral argument. At oral argument, the court asked plaintiffs' counsel how much of the punitive damages were attributable to the medical monitoring claims. Plaintiffs' counsel answered "40 percent." When DuPont's counsel later got up to argue, he focused on other issues and never addressed the plaintiffs' "40 percent" representation.

The Supreme Court concluded that DuPont's silence at oral argument amounted to a waiver, and therefore the 40 percent figure could be treated as an established fact, even though it was not supported by any evidence. In fact, it was actually contrary to documents in the record showing that the lower court had allocated 70 percent of the punitive damages to the medical monitoring claims, at the request of plaintiffs' counsel.

In other words, plaintiffs' counsel misrepresented the record at oral argument, but since that misrepresentation was unchallenged, the court could treat it as an established "fact." Perhaps that is consistent with West Virginia law, but I am confident that no California appellate court would take such an approach.

Related posts:

West Virginia Supreme Court Reduces $196.2 Million Punitive Damages Award to $98 Million

West Virginia Supreme Court Agrees to Review $196.2 Million Punitive Damages Award Against Dupont

W. Va. Supreme Court Candidates Support Appellate Review of Punitive Damages

West Virginia Gov. Defends His Amicus Brief in Punitive Damages Case

West Virginia Governor Draws Fire for Intervening in Punitive Damages Case

Does West Virginia's Lack of a Right to Appeal a Punitive Damages Award Violate Due Process?

West Virginia Governor Files Amicus Brief Urging West Virginia Supreme Court to Review Punitive Damages Award Against DuPont

DuPont Asks West Virginia Supreme Court to Review $196.2 Million Punitive Damages Award