Professor Dan Markel has posted an abstract of his Retributive Damages article on PrawfsBlawg. Based on the abstract, the article promises to be interesting, especially the part in which he “makes sense of the Supreme Court’s recent and somewhat puzzling holding in Philip Morris USA v. Williams.” In a previous post about Williams, we offered our own attempt to make sense of the Supreme Court’s holding.
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Law Review Article Explores Constitutional Limits on Punitive Damages in Wrongful Death Cases
Professor Mark A. Geistfeld has an article entitled “Punitive Damages, Retribution and Due Process” in the January 2008 edition of the Southern California Law Review. The article calls for a new method of analyzing the excessiveness of punitive damages in cases involving serious bodily injury and death. He posits that punitive damages should serve to vindicate the social cost of a premature death. Relying on government statistics to compute those costs, he concludes that the $79.5 million punitive damages award approved by the Oregon Supreme Court in Philip Morris v. Williams was not excessive.
Click here to see the abstract.
Hat tip to How Appealing.
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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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Chemerinsky Article About Impact of Upcoming Exxon Valdez Decision
Professor Erwin Chemerinsky has an article on the pending Exxon Valdez case in the January 2008 edition of Trial, a publication of the American Association for Justice. Not to be confused with the Justice League of America, the American Association of Justice is the group most recently known as the Association of Trial Lawyers of America.
Professor Chemerinsky’s article predicts this case may result in a 4-4 split, since Justice Alito has recused himself from this case. He notes that Justices Scalia, Thomas, and Ginsberg have consistently dissented from the Court’s prior decisions involving due process limitations on punitive damages awards. He also notes, however, that those prior dissents may have little relevance in Exxon Valdez because the Court declined to review the due process issue presented by Exxon’s cert. petition.
We previously blogged about the possible impact of the Exxon Valdez opinion here. And we blogged about the surprising disparity between the number of plaintiffs’ amicus briefs versus the number of defense amicus briefs here.
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More Punitive Damages Scholarship
David Bernstein at the Volokh Conspiracy has an interesting post on a recent law review article critical of the Philip Morris v. Williams opinion. The article begins: “The history of the Fourteenth Amendment is one of hierarchy and capitalism. In the Amendment’s first 139 years, courts have consistently used it to perpetuate dominant notions of class and culture–to maintain deeply rooted inequality and resist meaningful changes in the areas of poverty, race, and gender. While the Amendment’s beautiful language and spirit could have been used to ensure quality and meaningful participation in all aspects of a civil community, its words have instead been employed as a tool for just the opposite.”
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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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Article Mulls Practical Effect of Philip Morris v. Williams
In an article titled “Punitive Damages Shrink as High Court Reins in Trial Lawyers,” Ellis Horvitz predicts that, after Williams, “We will not see the wildly excessive punitive damages sustained at the appellate level, and many will be cut down at the trial level.”