California Punitives by Horvitz & Levy

  • Law Review Article: “Recognition and Enforcement of U.S. Punitive Damages Awards in Continental Europe: The Italian Supreme Court’s Veto”


    The Summer 2008 edition of the Hastings International and Comparative Law Review contains an article entitled “Recognition and Enforcement of U.S. Punitive Damages Awards in Continental Europe: the Italian Supreme Court’s Veto.” (31 Hastings Int’l & Comp. L. Rev. 753.) The article is written by Francesco Quarta, an L.L.M. candidate at Hastings and a research scholar on the law faculty of Università del Salento, in Lecce, Italy.

    The article focuses primarily on the Italian court system’s refusal to enforce a $1 million judgment entered against an Italian bicycle manufacturer in a wrongful death action in federal district court in Alabama. Alabama law is rather unusual in that punitive damages are the only form of damages recoverable in wrongful death actions. In this case, the plaintiffs’ sought to enforce the judgment in Italy, but an intermediate appellate court in Venice ruled that the judgment was unenforeceable because punitive damages are not recognized under Italian law. The Italian Supreme Court affirmed.

    The article maintains that, in general, refusal to enforce U.S. punitive damages awards is consistent with Italian law. The article suggests, however, in cases where an award is nominally designated as punitive but contains some compensatory element (as is apparently the case with Alabama wrongful death awards), Italian courts should make some effort to separate the compensatory and punitive components of the awards, instead of rejecting such awards in their entirety. The article also suggests that Italian courts should refuse to enforce some U.S. compensatory damages awards, such as emotional distress awards, to the extent they contain a punitive component.

    For whatever reason, European views on American punitive damages awards seems to be a hot topic now.

  • Louisiana Law Review Article: “Punitive Damages: A European Perspective”

    The Spring 2008 edition of the Louisiana Law Review contains an article by Helmut Koziol, a retired law professor of the University of Vienna, director of the Research Unit for European Tort Law under the Austrian Academy of Sciences, and Managing Director of the European Centre of Tort and Insurance Law. The article, entitled “Punitive Damages: A European Perspective,” is an extend version of a lecture at Louisiana State University. No link is available but the citation is 68 La. L. Rev. 741.
    Professor Koziol’s article explores some of the reasons why the American system of punitive damages “cause[s] continental Europeans to shake their heads.” (We previously linked to an Adam Liptak article in the New York Times regarding foreign attitudes towards American punitive damages awards.) First, Professor Koziol says that punitive damages are often awarded to redress public outrage at conduct that damages society, but they are awarded to an individual who has neither suffered damage to that amount, nor has a claim for unjust enrichment against the defendant. “Even if there are very strong arguments for imposing a sanction on the defendant, these arguments alone cannot justify awarding the plaintiff an advantage when he has suffered no corresponding damage and has no unjust enrichment claim against the defendant.”

    Koziol also states that deterrence, one of the two goals of punitive damages (the other being punishment) can be reached only imperfectly through punitive damages. To acheive optimal deterrence, defendants would have to be subject to punishment for attempted misconduct, and not only to the occurrence of damage. But that would be contrary to other settled principles of private tort law. Koziol also points out that imposing punishment through tort law is contrary to the separation of criminal law and private law, “which is thought to be an achievement of modern legal culture.”

    Koziol concludes with the assertion that the American legal system should strive to acheive punishment and deterrence not through private tort law but through the development of criminal and administrative procedures. Under this approach, all fundamental principles of criminal law would be observed, including the principle that the punishment should be laid down in the law. In response to the criticism that prosecutors and criminal courts would be overwhelmed, he says, “I am no expert in this field, but I think that this problem could be reduced by a system of private prosecution. Granted, the suggested approach may lead to criminal courts being overburdened by a flood of cases, but the adjudication of criminal cases is the job of criminal courts, and a failure to do this would result in the civil courts being overloaded and civil rules being manipulated to accommodate the aims of criminal law.”

  • “Punishment Defanged: How the United States Supreme Court Has Undermined the Legitimacy and Effectiveness of Punitive Damages”

    Heather R. Klaassen, a law student at Washburn University School of Law, has written this Comment on Philip Morris v. Williams (Williams II) for the Washburn Law Journal: “Punishment Defanged: How the United States Supreme Court Has Undermined the Legitimacy and Effectiveness of Punitive Damages.” (No link is available but the citation is 47 Washburn L.J. 551.)

    The comment blasts the U.S. Supreme Court’s punitive damages decisions as misguided, and calls on the Court to abandon this line of caselaw entirely. Klaassen says the Court has undermined the traditional fact-finding role of the jury; has adopted guideposts for evaluating the excessiveness of punitive damages that “have little relationship to the facts of the case;” has undermined the power of state courts to punish and deter; and, in Williams, adopted a “semantic distinction between punishment-for-harm and punishment-for-reprehensibility that has no substantive or evidentiary value.” She blames the Supreme Court’s mistakes on the Justices’ “desire to shape political decisions.” Other than that, she thinks the Supreme Court is doing a great job!

    UPDATE (on 6/17/08): An anonymous reader left a comment informing us that the article is now available on the Washburn University School of Law’s website. Thanks for the tip!

  • Mercer Law Review Casenote: “Who’s on First? Why Philip Morris USA v. Wililams Left Juries Confused . . .”

    The Spring 2008 edition of the Mercer Law Review has a casenote on Philip Morris v. Williams entitled “Who’s on First? Why Philip Morris USA v. Williams Left Juries Confused About Whose Injuries Can Be Considered When Determining Punitive Damages.” (I don’t have a link to the article, but the Westlaw citation is 59 MERLR 1043.)

    The note, written by Steven Moulds, is largely a summary of the Williams decision and the Supreme Court’s recent series of punitive damages decisions. But the note concludes with a few interesting observations. Among them is the observation that only Justice Thomas, and not Justice Scalia, dissented on the ground that the Constitution does not protect defendants from excessive punitive damages. The article notes that Justice Scalia consistently dissented on that basis in the Court’s prior punitive damages cases, but he did not do so in Williams. He did not write a separate opinion on that basis nor did he join Justice Thomas’ dissent. Instead he joined Justice Ginsburg, who did not address whether the Constitution limits the jury’s discretion to award punitive damages.

    The article suggests that “Justice Scalia’s shift from Justice Thomas’s to Justice Ginsburg’s dissent might suggest that he is backing down from his previous dissents in Gore and Campbell, and that he may accept some limitations on punitive damages in future cases.” It never occurred to me before that Justice Scalia’s nonparticipation in Justice Thomas’s dissent might suggest a shift in Justice Scalia’s views. I had always assumed Justice Scalia did not think it necessary to reiterate his standing objection to the court’s due process excessiveness analysis in Williams because the Court did not reach that issue in Williams. We may have to wait some time to learn whether Justice Scalia’s views have shifted. Although the forthcoming decision in the Exxon Valdez case could conceivably shed some light on the issue, in all likelihood that decision will not delve into any Constitutional issues.

  • Economists’ Paper Contends that Caps on Punitive Damages Cause Doctors to Behave Less Carefully

    Whenever a state contemplates passing a bill to place restrictions on punitive damages, people on both sides line up with predictions about what will happen if the bill does or does not pass. The proponents usually say the reforms will address unfairness and abuses in the current system, draw business to the state, lower insurance premiums, etc. Opponents argue that the reforms will allow corporations and bad actors to run amok in the state without fear of consequences. Rarely does anyone ever attempt to back up their predictions with studies about what has happened in states that have already passed similar reforms.

    For this reason, this report from Healthcare Economist about a recent study on the effects of tort reform in the medical malpractice arena is very interesting. The paper, First Do No Harm? Tort Reform and Birth Outcomes, examined the effect of tort reforms (including, but not limited to, caps on punitive damages) on the the number of Caesarean sections performed compared to “regular” births.

    The Healthcare Economist report says doctors prefer to use C-sections because they receive additional compensation compared to a “regular” birth. (I suspect that doctors might also prefer C-sections because they can be scheduled, as opposed to the unpredictable alternative.) But performing a C-section exposes the mother to additional risks.

    The authors of study found that different types of tort reform had different impacts on the incidence of C-sections. Reforms to the joint and several liability rule, such as requiring allocation of fault to co-defendants based on culpability and preventing plaintiffs from holding a minor contributor responsible for the entire judgment, reduced C-sections and complications of labor and delivery. The authors of the study say this shows that doctors behave more carefully when they fear that an injured plaintiff may go after them and not just a deep-pocket co-defendant such as a hospital. But caps on damages were found to increase the use of the C-section procedure. The authors suggest that damages caps make doctors less cautious because they are less fearful of litigation.

    The article does not attempt to examine all the possible impacts of punitive damages reforms – – it only examines one small corner of the big picture. But perhaps this study represents the first step in an effort to raise the level of debate about punitive damages reforms by studying empirical results.

  • How the Supreme Court’s Recent Punitive Damages Decisions Limit Class Actions

    Professor Sheila Scheuerman of the Charleston College of Law has posted this forthcoming Baylor Law Review article on SSRN: “Two Worlds Collide: How the Supreme Court’s Recent Punitive Damages Decisions Affect Class Actions.” Here’s the abstract, summarizing Scheuerman’s thesis that punitive damages are no longer available as a class-wide remedy except in cases in which the plaintiffs have uniform injuries:

    This article examines the intersection between two controversial areas of the law – punitive damages and class actions – and argues that the Supreme Court’s recent jurisprudence clarifying the due process limits on punitive damages has broad implications on the procedural laws governing the types of cases that can properly be certified as a class action. Specifically, the article discusses the Supreme Court’s evolving approach to punitive damages from one that considered the harm a defendant’s conduct caused to society as a whole to one that now focuses almost exclusively on the harm to the specific individual bringing the lawsuit. This shift, which recently culminated in the Court’s 2007 decision in Philip Morris USA v. Williams, constitutionally requires that the amount of a punitive damages award relate to the amount of harm suffered by the party bringing the suit. That requirement is at odds with class action practices that treat punitive damages as a common, class-wide issue and that have allowed juries to assess a punitive damages award before evaluating the harm to the individual class members. The article argues, therefore, that where injuries are not uniform among class members, punitive damages cannot be pursued as a class-wide remedy.

    Hat tip: TortsProf Blog.

  • Michael Allen Article About the Significance of Philip Morris v. Williams

    Michael P. Allen, a professor at Stetson University College of Law, has written an article entitled “Of Remedy, Juries, and State Regulation of Punitive Damages: The Significance of Philip Morris v. Williams.” The article has been available on SSRN for a few months, but it just became available on Westlaw. A few things about the article caught my eye. First, Allen views the Williams decision as a further tightening of the ratio analysis that the Court adopted in BMW v. Gore and refined in State Farm v. Campbell:

    I suggest that Philip Morris is another step in the Court’s campaign to restrict the device to what it perceives to be its historical roots. Specifically, the Court in Philip Morris more explicitly adopts a one-on-one tort model as the constitutionally favored view of the tort system, at least with respect to punitive damages.

    Compare Allen’s view to that of Anthony Sebok, who draws the opposite conclusion from Williams in his Charleston Law Review article entitled “After Philip Morris v. Williams: What is Left of the Single Digit Ratio?“

    Allen also makes an observation about how the Court’s punitive damages jurisprudence has divided the conservative justices, and how Williams offers some insight as to how Chief Justice Roberts and Justice Alito will come down on that split:

    [T]he federal constitutional regulation of punitive damage awards, the overwhelming number of which are rendered under state law, has always been an intriguing battleground on which so-called “conservative” justices needed to choose between their purported instinct to protect business and commercial interests on the one hand and the protection of states from federal “interference” on the other. One saw this perceived conservative division at play in earlier punitive damages cases in which Justices O’Connor and Kennedy consistently voted to limit state punitive damage awards through, among other things, substantive due process principles. In contrast, Justices Scalia and Thomas consistently dissented in those cases, arguing principally that the Constitution provides no warrant for federal intervention concerning punitive damage awards.

    In Philip Morris we got at least a preliminary indication of where the new Chief Justice and Justice Alito come down on this “conservative split.” Perhaps somewhat surprisingly, both of them joined Justice Breyer’s majority opinion reaffirming and extending the Supreme Court’s precedents imposing federal constitutional limitations on state punitive damage awards. And they did so despite the opportunity to join a dissent based at least in part on a commitment to state-sovereignty principles.

    My co-blogger Jeremy Rosen has touched on this same issue in his posts about the role of conservative judges in punitive damages litigation and the possible impact of the presidential election on the Court’s decisions in this area.

  • Punitive Damages Articles from Charleston Law Review Symposium Now Available Online

    Our prior posts have discussed some of the papers generated by the Charleston Law Review symposium on punitive damages last September. TortsProfBlog now has this post linking to online versions of all the articles from the symposium volume of the Charleston Law Review.

    Here are the titles of all articles (see the TortsProfBlog post for the links):

    Anthony J. Sebok, After Philip Morris v. Williams: What is Left of the “Single-Digit” Ratio?

    Anthony J. Franze, Clinging to Federalism: How Reluctance to Amend State Law-Based Punitive Damages Procedures Impedes Due Process.

    Neil Vidmar & Matthew W. Wolfe, Fairness Through Guidance: Jury Instruction on Punitive Damages after Philip Morris v. Wiliams.

    Christopher J. Robinette, Peace: A Public Purpose for Punitive Damages.

    Keith N. Hylton, Due Process and Punitive Damages: An Economic Approach.

    Victor E. Schwartz & Christopher E. Appel, Putting the Cart Before the Horse: The Prejudicial Practice of a “Reverse Bifurcation” Approach to Punitive Damages.

    Elizabeth J. Cabraser & Robert J. Nelson, Class Action Treatment of Punitive Damages Issues After Philip Morris v. Williams: We Can Get There From Here.

    Byron G. Stier, Now It’s Personal: Punishment and Mass Tort Litigation After Philip Morris v. Williams.

    Michael L. Rustad, The Uncert-Worthiness of the Court’s Unmaking of Punitive Damages.

  • Charleston Law Review Article on Punitive Damages Jury Instructions

    In September 2007, the Charleston School of Law held a symposium on punitive damages entitled “Punitive Damages, Due Process, and Deterrence.”

    One of the papers from that conference, published in the Spring 2008 edition of the Charleston Law Review, has just become available on Westlaw. (We previously blogged about another paper from that conference, available on SSRN.)

    The paper is entitled “Clinging to Federalism: How Reluctance to Amend State Law-Based Punitive Damages Procedures Impedes Due Process,” authored by Anthony J. Franze, Counsel with Arnold & Porter’s DC office. The citation is 2 Charleston L. Rev. 297. Here is the introduction, with the footnotes omitted:

    Over a decade ago, when a majority of the Supreme Court first recognized substantive due process limits on punitive damages, Justice Scalia lamented that “[t]he Constitution provides no warrant for federalizing yet another aspect of our Nation’s legal culture.” Justice Ginsburg similarly echoed that the Court “unwisely venture[d] into territory traditionally within the States’ domain.” Those sentiments, while not carrying the day, have not died. From judicial complaints that the tort process has been improperly federalized, to academics’ arguments that the Supreme Court is “serving as a punitive damages puppeteer who interferes with the ability of the states to constrain corporate wrongdoing,” criticism of the so-called federalization of punitive damages lingers. While I disagree with these views on a number of grounds, in this short essay I focus on a practical concern: the extent to which clinging to federalism has impeded needed procedural reform at the trial level. In particular, I focus on model jury instructions. Despite calls for reform, the punitive damages model instructions relied on by litigants and courts across the country continue to reflect state law standards notwithstanding that, more often than not, those standards ignore or facially conflict with the Supreme Court’s federal constitutional benchmarks. Though there may be any number of reasons for the slow pace of legislative and instructional reform, this essay argues that it is time to cast aside any federalism-based resistance to conducting the needed overhaul of model punitive damages instructions. To this end, I provide three reasons why I believe the time for instructional reform is now.

  • Dan Markel Invites Feedback on Retributive Damages Article

    As noted in a prior post, Professor Dan Markel posted an abstract of his forthcoming punitive damages article entitled Retributive Damages. He has followed up with a post on Prafsblawg noting that a draft of the full article is available on-line, and inviting comments. His post on Profsblawg says the current draft is “somewhere between a shitty first draft and a final draft.”