Drug & Device law has an interesting post about punitive damages in failure-to-warn cases.  The post focuses on a federal district court decision (Salvio v. Amgen) that held “punitive damages are unfounded where a manufacturer-defendant warns of the potential danger that resulted in injury to a plaintiff.”  In other words, even if the warning is inadequate in some way, the fact that the defendant gave some warning about the risk defeats the “conscious indifference” mental state required for punitive damages.  The post discusses a number of prior cases in various jurisdictions and concludes that the court’s holding is on solid ground.

The California Court of Appeal decision in Johnson & Johnson v. Superior Court stands in stark contrast to all the cases discussed in the Drug & Device Law post.  In that case, as we previously reported, the court allowed the plaintiff to seek punitive damages based on a claim that the defendant’s warning about potential allergic reactions to Motrin was not sufficiently detailed.  That decision led to a $15.6 million punitive damages award, one of the top ten punitive damages awards of the year in California.  The case is up on appeal again, so the Court of Appeal will have the opportunity to take a look at the evidence to decide whether this really is a case of malice or oppression within the meaning of Civil Code section 3294.