Howard Bashman’s essay on Law.com, Not Even U.S. Supreme Court Victory Can Vanquish $75.9 Million Punitive Award Against Philip Morris, views the Oregon Supreme Court’s decision in Williams as a cautionary tale for associates. As Bashman notes, the Oregon court held that the trial court properly refused Philip Morris’s proposed punitive damages instruction, even though it correctly stated that the jury should not punish for harm to nonparties, because it also included some language that was erroneous under Oregon state law. Bashman draws the following moral from this story: “The next time young litigation associates are pondering how far to twist the law in the client’s favor in proposed jury instructions, it’s best if they remember: Attempting to gain your client some subtle, modest advantage could backfire and eventually cause your client to lose its ability to overturn a nearly $80 million punitive damages award.”

On the other hand, if the lawyers drafting the jury instructions hadn’t been aggressive, they never would have requested the language about harm to others, and they would have faced an insurmountable waiver problem on appeal. The Oregon Supreme Court’s approach seems to create an almost impossible situation for litigants.

In any event, the lessons to be drawn from Williams will depend greatly on the rules of a particular jurisdiction. As I noted in an earlier post, in California a trial court could not properly reject a proposed instruction on a fundamental due process issue, even if the instruction was defective in some way, without providing some sort of alternate instruction to protect the defendant’s due process rights.

UPDATE (by Curt Cutting on 2/10/08 at 10:16 am): Although the article refers to a “$75.9 million punitive award,” the actual amount of the award was $79.5 million. What’s $3.6 million between friends?