This is not an idle question. After the Massachusetts Supreme Court ruled in favor of gay marriage in 2003, there was an effort to overturn that decision by amending the state constitution through the referendum process. The Legislature blocked the effort to put the measure on the ballot for submission to the voters. Individual members of the Legislature were then sued by voters seeking, among other remedies, punitive damages.

It does seem likely that there will be numerous legal challenges to the ballot efforts already underway to seek an amendment to California’s constitution to essentially overrule the Supreme Court’s opinion. We will, of course, monitor those challenges to see if any involve claims for punitive damages.

For your reading pleasure, here is a copy of the plaintiffs’ reply in support of their petition for review to the California Supreme Court in Holdgrafer v. Unocal. As you may recall, this is the case in which the Court of Appeal reversed a $5 million punitive damages award and ordered a retrial on punitive damages because the plaintiffs improperly presented the jury with evidence of Unocal’s dissimilar conduct towards nonparties. We have previously linked to the petition for review, and the answer to the petition for review.

The Supreme Court has until June 16 to rule on the petition. The court normally holds its case conferences every Wednesday, but the court will not conference on May 28 or June 4 due to oral arguments. That means the court will either rule on this petition May 21 or June 11.

Yesterday we filed our answer, on behalf of Unocal, to the plaintiffs’ petition for review in Holdgrafer v. Unocal. This is another case we’ve been blogging about for a while, in which the Court of Appeal reversed a $5 million punitive damages award against Unocal because the award was tainted by improperly admitted evidence.

Earlier this week, Ford filed a petition for review in Buell-Wilson v. Ford, which we’ve been blogging about. That’s the case in which the Court of Appeal reaffirmed a $55 million punitive damages award even after the US Supreme Court vacated their prior opinion affirming the same award. Ford’s petition for review raises the following issues:

1. What procedural protections against the risk of punishment for alleged harm to nonparties are required by the U.S. Supreme Court’s opinion in Philip Morris v. Williams, and under what circumstances can those constitutional rights be deemed forfeited?

2. As a matter of California law and federal due process, are punitive damages prohibited in product liability cases where the manufacturer’s design conformed to objective indicators of reasonable safety, including industry standards and custom, governmental safety standards and policy judgments, and the existence of a genuine debate about what the law requires?

3. Is a $55 million punitive damage award, imposed in addition to $18 million in non-economic damages, in a case involving a single accident where the vehicle’s design was objectively reasonable, unconstitutionally excessive and arbitrary?

According to the California Supreme Court’s online docket, the court denied both parties’ petitions for review in Bullock v. Philip Morris. Justice Kennard voted to grant Philip Morris’s petition on the first issue presented, which involved the proper scope of retrial when a court vacates a punitive damages award and it is not possible to determine the particular conduct on which the jury based its finding of liability.

For copies of the Supreme Court briefing, see our prior posts:

PM’s petition

Bullock’s petition

Answer briefs by both parties

Reply briefs by both parties

The California Supreme Court’s opinion in City of Hope v. Genentech is available here. We haven’t yet had time to digest the opinion, but here’s the crux of the court’s holding:

In this complex case, which has 25,567 pages of reporter’s transcript plus 12,267 pages of clerk’s transcript and has generated 18 friend-of-the-court briefs, the primary issue is whether, as the jury found, a fiduciary relationship necessarily arose when City of Hope, in return for royalties, entrusted a secret scientific discovery to Genentech to develop, to patent, and to commercially exploit. Our answer is “no.” That conclusion invalidates the jury’s punitive damages award, which was based on City of Hope’s tort claim for breach of fiduciary duty.

. . . We affirm that part of the judgment awarding City of Hope $300,164,030 in damages for Genentech’s breach of contract. Because punitive damages cannot be awarded for breaching a contract, however, our conclusion that there was no fiduciary relationship requires us to set aside the jury’s award of $200 million in punitive damages to City of Hope.

The California Supreme Court has issued a “notice of forthcoming filing” in City of Hope v. Genentech, which involves a $200 million punitive damages award. The issue presented in the case, per the court’s news release is:

“When an inventor or researcher entrusts a new idea or discovery to another under an arrangement providing for the other party to develop, patent, and commercially exploit the idea or discovery in return for royalties to be paid to the inventor or researcher, does a fiduciary relationship arise between the two parties, a breach of which may support tort, and in an appropriate case punitive, damages, or should the arrangement be treated like an ordinary contractual agreement, a breach of which supports only contract and not punitive damages?”

As we noted in our blog post after the oral argument, the argument primarily focused on tort liability issues and not at all on the amount of the punitive damages award (although that issue was addressed in the briefing).

Full disclosure: as we’ve mentioned before, our firm is counsel of record in this case.