We have a pretty high threshold for imposing punitive damages in California.  The plaintiff has to prove by clear and convincing evidence that the defendant committed intentional fraud or engaged in “despicable” conduct with a “conscious disregard” for the rights others.  When a plaintiff’s allegations to meet those standards, courts often strike the punitive damages claims from the complaint, or grant summary adjudication on the issue of punitive damages.

It’s a little hard to see how the claims in this case made it through.  The plaintiff is seeking punitive damages against Johnson & Johnson for failing to warn of the possibility of a severe allergic reaction that causes a potentially fatal skin condition.  Johnson & Johnson did warn about the possibility of severe allergic reactions, but didn’t specifically warn about skin reddening, blisters, or rash.

The plaintiff also claims Johnson & Johnson should be punished for withholding information from the FDA.  Johnson & Johnson did provide all the information in question to the FDA, but allegedly acted with malice by including the information in a voluminous submission without specifically highlighting this particular risk.

The trial court denied Johnson & Johnson motion for summary adjudication on the issue of punitive damages, and Johnson & Johnson petitioned the Court of Appeal for writ relief.  The Court of Appeal (Second Appellate District, Division Four) issued an alternative writ and called for briefing on the merits, but then issued an unpublished opinion upholding the trial court’s order.  There court concludes there are sufficient facts to create a triable issue on the question of malice.

Maybe there are some additional facts not included in the opinion, but I just don’t see how the a reasonable jury could conclude that the evidence described in the opinion amounts to clear and convincing evidence of “despicable conduct” or “conscious disregard.”