Anthony Sebok has an article on FindLaw which analyzes the Oregon Supreme Court’s recent opinion in Philip Morris v. Williams. He looks to a number of justifications that have been given to defend the Oregon Supreme Court’s opinion. Ultimately, he opines that “the Oregon Supreme Court could have read the [sic] Philip Morris’s cert petition, or Breyer’s conclusion, or the 2002 appellate decision for their substance, as opposed as to a counterintuitive formal or literal meaning. And had it done so, its interpretation would have been much more persuasive. But a substantive interpretation would have meant giving a victory to a hated tobacco-company defendant–one that had forced the United States Supreme Court to twice intervene in Oregon’s own local search for justice on behalf of an Oregonian whom a jury had found was defrauded by the company and killed by its product.” His bottom line is that “I would like the United States Supreme Court to take some time out of its busy schedule to vacate the recent Oregon decision, and to remand with instructions that the jury verdict be retried with instructions that do not violate the Constitution. That would be a fitting response to a state court that seems to think that winning is the only thing that matters.”
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Lessons from Philip Morris v. Williams for Drafting Jury Instructions
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?
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2008 Election, the Supreme Court and Punitive Damages
One of the issues that the major presidential candidates will argue about in the general election is what type of judges should be appointed to the federal courts, especially to the Supreme Court. Many observers predict that the next president will have at least two or three nominees to the United States Supreme Court. Recently, Senator McCain, as part of his outreach to conservatives, issued a statement on judicial nominees: “I believe that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As President, I will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat. . . . When applying the law, the role of the judge is not to impose their own view as to the best policy choices for society but to faithfully and accurately determine the policy choices already made by the people and embodied in the law. The judicial role is necessarily limited and one that requires restraint and humility.”
Senator Clinton and Senator Obama have argued for a more expanded role for federal courts in general, and the United States Supreme Court in particular, especially in the area of ensuring due process in a wide range of cases.
The United States Supreme Court’s jurisprudence on the constitutional limits on state court punitive damage awards has created some interesting coalitions. In BMW v. Gore and Campbell v. State Farm, the majority who found that the due process clause imposed a significant limitation on state jury awards of punitive damages included Justices Stevens, Souter, Breyer, Kennedy, O’Connor and Chief Justice Rehnquist. The dissenting justices Scalia, Thomas and Ginsberg argued that the Due Process Clause did not provide such a substantive limitation on punitive damages. In the more recent Philip Morris v. Williams case, Chief Justice Roberts and Justice Alito joined the majority in reversing a state-court punitive damages award on the basis that the lack of a jury instruction violated due process. Justice Stevens joined the earlier dissenters (Scalia, Thomas and Ginsberg) while Souter, Breyer and Kennedy remained in the majority.
Thus, will a President McCain, who says he wants to appoint justices who will show judicial restraint, appoint justices like Scalia and Thomas who find no federal due process right implicated by state-court punitive damage awards, or will he appoint justices like Roberts, Alito, and Rehnquist who do? Conversely, will a President Clinton or President Obama appoint justices who have an active view of due process in punitive damage cases like Justices Breyer, Souter, and Stevens or one with a view like Justice Ginsberg? The analysis of constitutional limits on punitive damages does not fit into the usual 5-4 box into which many controversial cases seem to fit.
This is a question that deserves to be contemplated over the next many months as the future of the Supreme Court is debated.
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Will the Oregon Supreme Court Learn About Summary Reversals?
The blogosphere is filled with rather colorful metaphors and descriptions for what the Oregon Supreme Court was saying to the United States Supreme Court in its recent opinion in Philp Morris v. Williams. See here, here, and here. But, of course, the United States Supreme Court can still have the last word. The Oregon Supreme Court based its holding on the asserted ground of an adequate and independent state law ground to overcome the due process violation found by the United States Supreme Court. However, there are exceptions to that doctrine. The United States Supreme Court has explained that the right of state courts to assert independent state law grounds is not unlimited: “It therefore is within our province to inquire not only whether the right was denied in express terms, but also whether it was denied in substance and effect, as by putting forward nonfederal grounds of decision that were without any fair or substantial support . . . [for] if non-federal grounds, plainly untenable, may be thus put forward successfully, our power to review easily may be avoided.” Thus, it is possible that the United States Supreme Court could reverse (even by summary reversal) the recent Oregon opinion on the basis that the independent state law ground regarding evaluating proposed jury instructions cannot be used as a shield to overcome a plainly unconstitutional trial. In the alternative, the court could grant certiorari and then consider the excessiveness of the award under the Due Process Clause.
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Proposed Revisions to CACI Jury Instructions Available Soon
Bruce Greenlee, staff attorney for the California Judicial Council’s Advisory Committee on Civil Jury Instructions, has advised us that the committee has prepared a set of proposed revisions which they plan to release for public comment today or tomorrow. The revisions will appear here.
The proposed revisions will include changes to the insurance litigation series, but we do not yet know if the committee will be proposing any revisions to the punitive damages series. Obviously, it’s too soon for the proposed revisions to reflect the suggestions made by the Court of Appeal in Bullock (described here).
UPDATE (2/1/08 AT 3:14 pm): The proposed CACI revisions are now online, and they do not include any proposed revisions to the punitive damages series.
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Rationale of Oregon Supreme Court Decision in Philip Morris v. Williams Should Not Apply in California
The Oregon Supreme Court’s decision handed down today finding a defendant waived its due process rights to proper calculation of punitive damages (see earlier post here) is based on reasoning which, whether valid or not under Oregon law, should not apply in California. The Oregon Supreme Court concluded that the trial court had an adequate basis under state law for refusing to instruct the jury that “you are not to punish the defendant for the impact of its alleged misconduct on other persons.” The U.S. Supreme Court had held that a defendant is entitled to due process protections such as are reflected in this sort of instruction upon request, but the Oregon Supreme Court said the trial court properly refused the proposed instruction in this case because it included other language, some of which was erroneous under Oregon state law. Apparently, under Oregon law, a trial court can refuse a party’s request for an instruction that correctly sets forth relevant principles of law – even principles essential to ensuring constitutional rights – if the proposed instruction is bundled with other language that is incorrect.
The same reasoning would not apply in California. California courts have held that, even when a proposed jury instruction is flawed, if the subject matter of the instruction is “vital” or “material” to the case and not covered by other instructions, the trial court is required to give a proper instruction that captures the substance of the law. Thus, in California, if no other jury instruction addressed the fundamental due process concerns discussed in Williams, the trial court could not properly reject a proposed instruction on that issue without providing some sort of alternate instruction to protect the defendant’s due process rights. (See, e.g., Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 698.)
How Appealing has another post on Williams entitled “The cost to Philip Morris of trying to slant jury instructions too far in its favor — $79.5 million in punitive damages.”
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More on Bullock v. Philip Morris
This 60-page opinion covers a lot of ground, but the core of the court’s rationale for reversing the $28 million punitive damages award is that the trial court erred when it refused to instruct the jury, “You are not to impose punishment for harms suffered by persons other than the plaintiff before you.” By requesting that instruction, Philip Morris invoked the due process protection recognized by the U.S. Supreme Court in Philip Morris v. Williams, namely, that the Due Process Clause forbids states from imposing punitive damages to punish a defendant for injury inflicted on nonparties. Contrary to the arguments of Bullock and her amici, Philip Morris was not required to include in its instruction a statement that the jury could consider harm to others in evaluating the reprehensibility of the conduct that harmed Bullock. Philip Morris had no duty to qualify its proposed instruction to encompass a rule of law favorable to Bullock – – each party in a civil case has a duty to propose instructions that accurately state the law supporting its own theory of the case.
Interestingly, the opinion states in a footnote that although Philip Morris’s proposed instruction was sufficient, the official California jury instructions (also known as “CACI“) should be modified to more accurately reflect the holding of Williams. The court’s criticism of the CACI instructions is notable because the author of the Bullock opinion, Justice Walter Croskey, is the current chair of the Judicial Council’s Advisory Committee on Civil Jury Instructions, which is responsible for keeping the CACI instructions up to date. That committee modified the CACI instructions just a few months ago to reflect the holding of Williams. If I recall correctly, Justice Croskey recused himself from that process because the Bullock case was pending before him. Now Justice Croskey says in his opinion that the committee didn’t go far enough. The opinion says the instructions could do a better job of conveying the distinction that a jury may consider evidence of harm to others for the purpose of determining reprehensibility, but not for the purpose of punishing the defendant directly for harm caused to others. I’m going to go out on a limb and predict that the next set of proposed revisions to the CACI instructions will include a modification based on the Bullock opinion. -
Recent Punitive Damages Scholarship
California’s appellate courts will soon begin issuing opinions helping to formulate the required jury instructions that will need to be given in light of Philip Morris v. Williams. (See here for a discussion of three pending CA cases on this issue.) A recent article by two Duke Law Professors discusses the nationwide question of how to elucidate specific jury instructions from that opinion: Vidmar, Neil and Wolfe, Matthew W., “Fairness Through Guidance: Jury Instruction on Punitive Damages After Philip Morris v. Williams” . Charleston Law Review, Vol. 2, 2007 Available at SSRN: http://ssrn.com/abstract=1025997
Abstract:
Punitive damages present a significant issue in American law. Phillip Morris v. Williams – the United States Supreme Court’s most recent foray into punitive damages litigation – has once again raised procedural and substantive due process matters regarding fairness to defendants and reawakened debate in this area. Proponents of punitive damages argue that the awarding of punitive damages protects the community from wanton or predatory acts – or other behavior that violates social norms – by sanctioning the defendant and sending a general message that the actions are reprehensible and will not be tolerated. Opponents argue that the punitive damage awards by juries have gotten out of hand, and that in addition to being unfair to defendants, they have the potential to put a company out of business or substantially hinder a company’s viability. With so much at stake on both sides, and with the Supreme Court’s frequent intervention in this arena, punitive damage doctrine is primed for clarity and guidance. The purpose of this Article is to provide this clarity and guidance by proposing model jury instructions on punitive damages in light of Phillip Morris and its immediate predecessors.The Article proceeds in four parts. Part I introduces the Supreme Court’s debate in Phillip Morris v. Williams, borrowing liberally from the Court’s opinion to establish the current doctrine on punitive damage awards. Part II then analyzes the problem that drafters face in the wake of Phillip Morris in revising model jury instructions. Part III offers some criteria to solve this dilemma, including offering juries written instructions, detailing the Court’s requirements, and defining fairness. Part IV presents a first take on what model jury instructions that meet these criteria might look like. In conclusion, we articulate the next steps in providing jurors with the guidance necessary to make informed and fair decisionmaking vis-à-vis punitive damage awards.
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Three Pending Cases Involving Application of Philip Morris v. Williams
Readers of this blog are no doubt aware of the United States Supreme Court’s decision, roughly one year ago, in Philip Morris v. Williams. In a nutshell, the Court held that juries must be instructed not to punish a defendant for conduct towards nonparties. The Court allowed juries to consider harm to nonparties for the limited purpose of evaluating the reprehensibility of the defendant’s conduct, but the Court held that if such evidence is admitted at trial, the court must give a limiting instruction explaining that harm to others is relevant only to reprehensibility and should not be used as a basis for imposing punishment.
Many commentators complained that the Williams opinion was confusing. The primary complaint was that two aspects of the Court’s holding are fundamentally inconsistent; critics complained that a jury cannot consider harm to others for reprehensibility purposes (which is part of determining the proper degree of punishment) without running afoul of the court’s prohibition against punishing a defendant for harm to others. In our view, the two aspects of Williams are easily reconciled. A jury can consider harm to others in determining whether the defendant’s conduct was reprehensible enough to support a three-to-one ratio versus a one-to-one ratio, but the denominator in the ratio must be the harm to the plaintiff, and cannot include harm to others. For example, if the plaintiff presents evidence that the defendant caused the plaintiff to suffer $100,000 in actual harm, and also presents evidence that the defendant caused similar harm to 9 nonparties, the jury could properly consider the evidence of harm to others in determining that the ratio should be three-to-one instead of one-to-one, but the jury could apply the three-to-one ratio multiplier only to the plaintiff’s actual harm ($100,000), not the total harm allegedly caused to the plaintiff and all the nonparties ($1 million).
In the near future, the California Court of Appeal may clarify the proper application of Williams. We are aware of three pending appeals in which the defendants are seeking reversal based on Williams. Holdgrafer v. Unocal is pending in the Second Appellate District, Division Six (Ventura). It was argued on May 23, 2007, but the court subsequently accepted two rounds of supplemental briefing and resubmitted the case on December 21, 2007. Buell-Wilson v. Ford Motor Co. is pending in the Fourth Appellate District, Division One (San Diego). It was argued on December 11, 2007. Bullock v. Philip Morris is pending in the Second Appellate District, Division Three (Los Angeles). It was argued December 12, the day after the Buell-Wilson argument. Under the California rule requiring courts to issue an opinion within 90 days after submission, we should see opinions in all three cases by the end of March.
In Bullock, the court of appeal took the unusual step of inviting the parties to submit names of amici who might be interested in submitting briefs. After receiving lists from both parties, the court invited and received a wide range of amicus briefs on the effect of Williams. Copies of the briefing can be found at this link.
In the interests of full disclosure, we should mention that the authors of this blog are counsel of record for Unocal in the Holdgrafer appeal and we have an attorney-client relationship with Philip Morris.