University of Iowa College of Law professor N. William Hines was intrigued by the creative approach that the Oregon Supreme Court followed in 2008 when reaffirming a 97-to-1 punitive award against Philip Morris after the United States Supreme Court decision in Philip Morris v. Williams. (See our original post on that development.) The latter decision had seemed at first blush to dictate a reversal and retrial due to instructional error, but the Oregon court found an end run around that result. Upon contemplating the procedural history of Williams, Professor Hines undertook a study (abstracted here) to see “whether lower courts could be counted upon to faithfully implement the Supreme Court’s new constitutional jurisprudence regarding punitive damages.” To that end, he “decided to collect and study all of the reported punitive damages cases decided by lower courts since the 2003 State Farm decision.”

The results of the study are interesting, leading Professor Hines to conclude, among other things, that the more than 400 cases analyzed show “much wider diversity in the types of modern cases in which punitive damages are sought and awarded” than one might assume. The professor’s ultimate conclusion is that court review of those awards has generally reflected a high degree of faithfulness to the guidance from the Supreme Court (notwithstanding the Oregon court’s approach in Williams): “In case after case, the lower courts correctly invoked the new constitutional doctrine based on Due Process and dutifully proceeded to analyze the reasonableness and size of the punitive damages award before them by applying the three Guideposts.”

For those tracking Due Process jurisprudence as applied to punitive damages awards, the full study, including the appendix charting objective data about the types of cases and ratios between compensatory and and punitive damages, is worth a read. The July 2011 paper is titled, “Marching to a Different Drummer? Are Lower Courts Faithfully Implementing the Evolving Due Process Guideposts to Catch and Correct Excessive Punitive Damages Awards?”

Cornell law professors Theodore Eisenberg & Michael Heise have uploaded a paper to SSRN entitled “Judge-Jury Difference in Punitive Damages Awards: Who Listens to the Supreme Court.” 

The authors state that data collected in 2005 confirms a “higher amount of punitive damage awards relative to compensatory damages awards in cases tried to juries than in bench trials.”  Some readers might assume that judges award more modest punitive damages awards because judges are aware of the U.S. Supreme Court’s recent case law, and they don’t want to be reversed on appeal.  Not so fast, the authors say.  According to them, juries award higher amounts only because juries are more likely to get the types of cases that generate big awards.

Hat tip: Civil Procedure & Federal Courts blog

Here’s a new law review article of interest to those dealing with punitive damages in employment cases, authored by Professor Sandra Sperino of Temple University School of Law. I can’t find a hyperlinkable version, but the Westlaw cite is 62 OKLR 701.  The abstract: 

To determine whether a punitive damages award is constitutionally excessive, courts are required, among other things, to consider the ratio of compensatory to punitive damages. No longer is the total sum of remedies the only relevant calculation in determining whether an award is excessive. The numbers the judge decides to use in the ratio comparison also become important, in many cases determining whether excessiveness review is even warranted.

Owing in part to the complexities of the employment discrimination remedies regime, courts make numerous errors when undertaking the required comparison in the employment discrimination context. When conducting the excessiveness calculus, some judges fail to value back pay and front pay, resulting in an exaggeration of the difference between the harm to the plaintiff and the awarded punitive damages. Likewise, judges often ignore the value of nonmonetary equitable relief awarded to the plaintiff. Additionally, little consideration has yet been given to how the division of damages across legal theories or causes of action affects the excessiveness inquiry.

While some of these problems result from courts’ failures to properly reconcile the specialized remedies regime of Title VII with the excessiveness inquiry, others point to more fundamental issues with the constitutional inquiry itself. Hinging that inquiry on numbers that can easily be manipulated leads to serious questions regarding whether the inquiry actually and appropriately tests excessiveness. This article describes the analytic red herrings that may confuse courts conducting an excessiveness review, uses these missteps to illustrate fundamental flaws with excessiveness review, and suggests ways to minimize mistakes.

Professor Steve P. Calandrillo of the University of Washington School of Law thinks so. He has published an article in the George Washington Law Review entitled “Penalizing Punitive Damages: Why the Supreme Court Needs a Lesson in Law and Economics.”

Professor Calandrillo thinks that punitive damages should not be reserved for cases in which a defendant acted with malice or otherwise engaged in egregious misconduct. He contends punitive damages should be imposed whenever a defendant has escaped liability, or is likely to escape liability, for causing harm to others. He also thinks punitive damages should take into account harm to nonparties, and should play a quasi-compensatory rule, making plaintiffs whole for losses that are not otherwise compensated through the tort system, such as attorney’s fees or harms that are legally non-compensable.

Some might ask whether Professor Calandrillo needs a lesson in the Due Process Clause. Read the article and judge for yourselves.

Professor Alexandra Klass of the University of Minnesota Law School has posted an article on SSRN entitled “Punitive Damages After Exxon Shipping Company v. Baker: The Quest for Predictability and the Role of Juries.” Among other things, it contains a collection of lower court opinions that have followed the reasoning of Exxon Shipping outside the maritime context.

Here’s the abstract:

This Symposium Essay considers the impact of the Supreme Court’s 2008 decision in Exxon Shipping Company v. Baker on the ability of juries to award punitive damages in a manner that comports with the law. In that case, the Court continued its two-decade crusade to place federal limits on punitive damages awards. The Exxon case was a federal maritime case arising out of the 1989 grounding of the Exxon Valdez in Prince William Sound, Alaska, resulting in arguably the biggest environmental disaster in U.S. history. In its decision, the Court for the first time identified “unpredictability” as the fundamental problem with punitive damages today. It then set out to make those damages more predictable by reaffirming the need for very low ratios, in this case 1:1, between punitive damages and compensatory damages. In this Essay, I argue that the Court’s quest for predictability has resulted in reviewing courts being forced to rely too heavily on the facts of other cases involving similar claims in order to determine if the punitive damages award in the case at bar is constitutional. Such a system is fraught with error and, more importantly, creates a situation where juries cannot possibly render punitive damages verdicts that meet due process requirements because the very evidence they need to assess predictability – the facts and damage awards in other cases – cannot be made available to them.

Part I provides a brief discussion of punitive damages generally and the Court’s recent effort to place federal constitutional limits on those damages. Part II discusses the Exxon case itself and highlights the Court’s focus on “unpredictability” as the fundamental problem with punitive damages. Part III shows how lower courts have applied the Exxon case. This Part reveals that even though courts recognize that the Exxon case is a federal maritime case rather than a substantive due process case, courts have embraced the call for predictable awards by ensuring punitive damages awards are in line (both as a matter of ratio and as an absolute dollar amount) with other similar cases. Part IV illustrates how the quest for predictability requires information on other similar cases that cannot be given to juries, and how the premium now placed on predictable damages awards makes it difficult, if not impossible, for juries to arrive at constitutional verdicts.

Hat tip: TortsProf Blog.

Doug Rendleman of Washington & Lee School of Law has posted an article on SSRN entitled “Punitive Damages – Something for Everyone.”

Here’s the abstract:

Common-law punitive damages have some feature that will upset everyone: A civil court meting out punishment. A sanction imposed after mere civil procedure. A private plaintiff receiving a “windfall” that exceeds any reasonable estimate of loss. And the Supreme Court wielding the discredited doctrine of substantive Due Process.

After the Exxon-Valdez’s massive oil spill washed on the shoals of maritime common-law punitive damages, a two-decade pavane featured an angry Alaska jury, a sympathetic trial judge, and a Court of Appeals trying to interpret and apply several muddled Supreme Court punitive-damages decisions. In the denouement, Exxon Shipping v. Baker, the Supreme Court imposed a reduction of the punitive damages that ended the protracted litigation without satisfying anyone.

This article was prepared for a University of St. Thomas Law Journal symposium on punitive damages following the Exxon-Valdez oil spill. It examines punitive damages’ controversial features, summarizes and criticizes the Supreme Court’s decision, and suggests legislative principles of confinement that will preserve common-law punitive damages.

Professor Benjamin Zipursky of Fordham School of Law has posted an article on SSRN entitled Punitive Damages After Philip Morris v. Williams.

Among other things, the article discusses the Williams-based language that appears in California’s model jury instructions (CACI). Prof. Zipursky gives the CACI language a favorable review, but he thinks Ohio’s pattern instructions are a little better.

Here’s an excerpt from the abstract:

Philip Morris USA v. Williams has struck some commentators as hypertechnical, but it is in fact among the Court’s most significant pronouncements on the topic of punitive damages. At its center is the “Nonparty Harm Rule”: it is a violation of due process for a court to permit a jury in a tort case to use punitive damages to punish a defendant for harming persons who are not parties in the litigation. The holding is difficult to understand because the Court simultaneously stated that it is permissible to augment a punitive damages award in light of a defendant’s heightened reprehensibility and it is permissible to infer heightened reprehensibility from the numerosity of the persons injured by defendant’s conduct, including nonparties. It is surprising because it appears to sound more in process, while prior cases have focused on the magnitude of the award. For both of these reasons, it is challenging to lower courts, who must craft jury instructions implementing Williams’ mandate. This article tackles all three problems.

Hat tip: TortsProf Blog.

For those of you who are following the debate between professor Dan Markel and professors David Owen and Michael Krauss about the proper conceptual underpinnings of punitive damages, here’s Prof. Markel’s latest installment: Punitive Damages and Private Ordering Fetishism: A Response to Professors Krauss and Owen.

Links to Markel’s previous articles: Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction and How Should Punitive Damages Work?

Links to: Krauss’ criticism and Owen’s criticism.

Hat tip: Prawfsblawg.

Related posts:

New Law Review Articles on Punitive Damages

“Through the Looking Glass: A Respose to Professor Dan Markel’s Retributive Damages”

Commentary on Prof. Dan Markel’s Punitive Damages Theory

The Winter 2010 issue of the Lousiana Law Review is a symposium edition on the topic of punitive damages. Here’s a list of all the articles, with links to the text:

Foreword: Punitive Damages Today and Tomorrow
Thomas C. Galligan, Jr.

Punitive Damages and the Constitution
Thomas H. Dupree, Jr.

Punitive Damages and Class Actions
Francis E. McGovern

Punitive Damages in U.S. Maritime Law: Miles, Baker, and Townsend
David W. Robertson

Vicarious Liability for Punitive Damages
Michael F. Sturley

Punitive Damages, Forum Shopping, and the Conflict of Laws
Patrick J. Borchers

A Common Lawyer’s Perspective on the European Perspective on Punitive Damages
Michael L. Wells

Louisiana Punitive Damages—A Conflict of Traditions
John W. deGravellesJ. Neale deGravelles