Ballester v. Ecolab: plaintiff cannot use punitive damages claim to circumvent workers' comp exclusivity

The plaintiff in this case brought a claim against his employer for intentional infliction of emotional distress, arguing his supervisor "fraudulently" criticized his job performance.  Unfortunately for him, it is well established in California that the Workers' Compensation Act provides the exclusively remedy for infliction of emotional distress resulting from alleged personnel actions.  To avoid that rule, the plaintiff included in his complaint a cause of action for punitive damages, and argued that the punitive damages claim took the case outside the realm of workers' compensation exclusivity.  The trial court disagreed, sustained the employer's demurrer to the complaint, and entered judgment for the defense.

The California Court of Appeal (First Appellate District, Division Three) affirmed in this unpublished opinion, citing the well-established rule that “[t]here is no cause of action for punitive damages. . . . ‘Punitive damages are merely incident to a cause of action, and can never constitute the basis thereof.’”  Accordingly, because the plaintiff had no cause of action that was not subject to workers' compensation exclusivity, the trial court correctly dismissed his claims.

Shaw v. Long Drug Stores: retail chain's regional manager qualifies as "managing agent"

In this unpublished opinion, the California Court of Appeal (Second Appellate District, Division Five) permits a plaintiff in an employment case to seek punitive damages from her employer.

The plaintiff, a drug store employee, accused her supervisor of sexual harassment.  She sued her employer for compensatory and punitive damages, but the trial court granted the defendant's motion for summary adjudication on the issue of punitive damages.  The court ruled that the plaintiff presented no evidence that her supervisor's misconduct was was approved by a corporate "managing agent," as required to obtain punitive damages against a corporation under California Civil Code section 3294.

The Court of Appeal disagreed.  It said the plaintiff presented evidence that she complained to the defendant's regional manager, who was responsible for managing every aspect of the day-to-day operations at approximately 25 stores.  The court said this evidence demonstrated a sufficient level of independent discretionary authority to support a finding that the regional manager was a managing agent.  Curiously, the court did not cite Roby v. McKesson, the California Supreme Court's latest decision on the requirements for establishing managing agent status.

House Judiciary Committee approves proposal to cap punitive damages at $250,000 in all medical malpractice cases nationwide

Politico reports that the House Judiciary Committee voted along party lines (18-15) to approve a medical malpractice reform bill which, among other things, would limit punitive damages in med mal cases to $250,000 or two times compensatory damages, whichever is greater.  The bill would apply to all med mal lawsuits in federal and state courts.  If passed, the bill would have an impact in California, where we have a cap of $250,000 on non-economic damages in med mal cases, but no cap on punitive damages.  (And contrary to what the AP might tell you, there is a difference between non-economic damages and punitive damages.)

South Carolina House of Representatives approves bill to cap punitive damages

Bloomberg reports that a bill to cap punitive damages was overwhelmingly approved in the South Carolina House of Representatives, by a vote of 100-7.  The bill would limit punitive damages to $350,000 or three times compensatory damages, whichever is higher.  A similar bill was approved by the state House of Representatives last year, but never won approval in the state Senate.

If this bill wins approval, it'll be a little too late for Fortis Insurance Company.  Fortis was on the losing end of a $10 million punitive damages award in a South Carolina insurance bad faith case a little over a year ago.

To the best of my knowledge, South Carolina would become the 27th state to have a cap on punitive damages, including those states that prohibit punitive damages altogether.  Wisconsin recently became number 26.  So 2011 marks the year in which uncapped punitive damages awards became the minority position among state legislatures.  If this trend continues, this blog may become obsolete.  Please, no tears.  I think we've got a few years left.

The latest proposal to cap punitive damages in California is awaiting the decision of the Assembly Commission on the Judiciary, but I've seen no indication that it will fare any better than last year's proposal, and the one before that, and the one before that . . .

Hat tip: TortsProf Blog.

Smoker asks for $10 billion in punitive damages; jury awards $260,000

Bloomberg reports that a Florida jury has awarded $260,000 in punitive damages to a smoker in a lawsuit against RJ Reynolds, rejecting the plaintiff's request for $10 billion. The Bloomberg story quotes the disappointed plaintiffs' lawyer: "It could have been and should have been more . . .  [b]ut this is my first tobacco trial."


The plaintiff's lawyer may have thought that, just by asking for $10 billion, he would get at least a few million bucks out of the jury.  After all, as our friends at Cal Biz Lit have noted, research shows that the most significant predictor for a large punitive damages award is a large request.  That principle apparently did not work in the plaintiff's favor here, although we'll never know how much the jury would have awarded if the plaintiff had asked for something within the realm of reason. 


Related posts:

Plaintiffs break losing streak in Florida smoker lawsuits, win $72 million punitive damages award
Philip Morris wins sixth straight trial in Florida smoker litigation

Florida jury awards relatively modest punitive damages in smoker lawsuit

Another punitive damages award in Florida tobacco litigation

Florida jury awards $20 million in punitive damages to smoker's widow

Smoker's widow wins $12.5 million in punitive damages

Florida trial judge cuts $244 million punitive damages award

Florida jury awards $25 million in punitive damages to smoker's widow

"Smokers, tobacco, both winners in early Engle cases"

Jury rules for plaintiff in first phase of retrial after reversal of $145 billion punitive damages award

After reversal of $145 billion class action punitive damages award, Florida smokers seek punitive damages in individual suits

Court of Appeal publishes opinion on punitive damages against Johnson & Johnson for ibuprofen warnings

The California Court of Appeal (Second Appellate District, Division Four) has ordered publication of this previously unpublished opinion we blogged about a few weeks ago.  The Court of Appeal's online docket says publication was requested by the plaintiff and by "Non-parties Brakefield."  I'm not sure who or what Brakefield is, but presumably they're seeking punitive damages in some other action and they sought publication of this opinion to chip away at the usual strict standards for punitive damages claims in California.

California lawyer wins another big punitive damages award against BDO Seidman

The Miami Herald reports that a Florida jury has awarded $91 million, including $55 million in punitive damages, to the estate of philanthropist/aviation pioneer George Batchelor in a lawsuit against accounting firm BDO Seidman.  The plaintiff claimed that BDO Sediman fraudulently concealed information about a company in which Batchelor had invested.

The California connection here is the plaintiff's lawyer: Steven Thomas of Thomas, Alexander & Forrester in Venice.  Thomas scored an even bigger punitive damages award ($351 million) against the same defendant in another Florida case in 2009 (see this post), but that award was reversed on appeal.

Green v. Laibco: $1.2 million in punitive damages affirmed

In this published opinion, the California Court of Appeal (Second Appellate District, Division Eight), affirms a punitive damages award of $1.2 million. There was only one appellate issue regarding the punitive damages award: whether the plaintiff met her burden of presenting meaningful evidence of the defendant’s financial condition. The plaintiff presented evidence that the defendant earned a profit of $670,000 in the most recent 12-month period, and was "in the black" (although the actual amount of net worth was unspecified). The court said this evidence was sufficient to sustain the award, considering that the defendant had delayed in responding to discovery requests for financial information, and the defendant’s CEO was unable to personally calculate the defendant’s actual net worth.

Full disclosure: Horvitz & Levy represents the defendant in this appeal, and we will not comment on the opinion because the litigation is ongoing.