California Punitives by Horvitz & Levy

  • Three Strikes For Linda Greenhouse: Her Commentary on Williams III Misses the Mark

    Linda Greenhouse reported here on the United States Supreme Court’s recent cert grant in Williams III. As we pointed out here, the court granted cert only on the question regarding the independent state law ground and declined to review the award for excessiveness. Greenhouse writes that “the justices denied review on the first question, which would have had broad application to all punitive damages cases. In earlier rulings, the Supreme Court has suggested that punitive damages should be no more than nine times the compensatory damages, and perhaps a good deal less than that, but there is evidently not a clear majority to convert the suggestion into a firm rule. Instead, they will hear Philip Morris’s appeal only on the second question, which applies to this convoluted case, now in its ninth post-verdict year, and to no other. The justices, in other words, appeared less concerned with making law than with asserting their own authority over that of state courts on the issue of punitive damages.”

    Greenhouse’s analysis ignores the current state of punitive damages jurisprudence. First, the Supreme Court has not “suggested” that the ratio of punitive damages to compensatory damages must be in the single digits and perhaps the very low single digits; it has held that such an outcome is mandated by federal due process (subject to a few narrow exceptions, e.g., where the compensatory damages are very small). Second, there plainly is a clear majority for this holding and a firm rule that is required to be applied nationwide. Indeed, the State Farm v. Campbell case was a 6-3 opinion and is controlling authority on this point. Third, the issue raised by the second question is not unique only to this case. It is the question squarely presented by the petition for review to the California Supreme Court in Buell-Wilson v. Ford.

  • U.S. Supreme Court Grants Certiorari in Williams III

    The U.S. Supreme Court has granted cert. yet again in Philip Morris v. Williams. The Court’s order limits the grant of certiorari to Question 1 presented by the opinion, which involves the Oregon Supreme Court’s use of a state-law procedural rule to find that Philip Morris forfeited its right to complain about the due process violation that the Supreme Court found in its earlier opinion:

    “Whether, after this Court has adjudicated the merits of a party’s federal claim and remanded the case to state court with instructions to “apply” the correct constitutional standard, the state court may interpose–for the first time in the litigation–a state-law procedural bar that is neither firmly established nor regularly followed.”

    The Court declined to review the second issue presented, which was the constitutional excessiveness of the award. The Court’s limited grant of review is interesting because the Court granted review on the excessiveness issue last time around, although the Court never reached that issue given its disposition of the case. The limited grant of review will probably lead to a lot of speculation about whether the Court’s views on excessiveness have shifted after the addition of Justices Roberts and Alito, who may share the view of Justices Scalia and Thomas that the Constitution does not impose restrictions on the amount of punitive damages. On the other hand, the Court’s decision not to review the second issue may simply reflect an understanding among the members of the Court that they are likely to reverse the Oregon Supreme Court on the procedural issue (again) and therefore won’t need to reach the excessiveness issue. Or perhaps the justices feel that they said all that needs to be said about excessiveness in BMW v. Gore and State Farm v. Campbell.

    In any event, the Supreme Court’s grant of certiorari in this case will come as a bit of surprise to some. Howard Bashman, for example, predicted that the Court would not be interested in the procedural issue. My co-blogger Jeremy Rosen, on the other hand, was highly confident that the Court would reverse the Oregon Supreme Court on the procedural issue. Jeremy predicted a summary reversal, which obviously didn’t happen, but a reversal seems likely nevertheless.

    SCOTUSblog has links to the opinion below, petition, the brief in opposition, the reply, and the amicus briefs at the petition stage (by the US Chamber, Washington Legal Foundation, Associated Oregon Industries, and the Products Liability Advisory Council).

  • Still No Ruling On Cert. Petition in Williams II

    As we noted in a prior post, the Supreme Court originally distributed the third cert. petition in Philip Morris v. Williams for consideration at its May 22 conference, but when the court issued its order list for the May 22 conference, the court did not rule on Williams II. The court then redistributed the case for consideration at its May 29 conference. Today, the order list for that conference is now available, and there’s still no ruling on Williams II. Does this mean (as my co-blogger Jeremy Rosen has suggested) that the Supreme Court is planning to issue a summary reversal and they’re taking additional time to draft their opinion? Are they having trouble reaching a decision on whether to grant cert.? Are they holding the case pending the disposition of the Exxon Valdez case (which seems unlikely, since the excessiveness issue in that case arises under federal common law rather than the Due Process clause, as in Williams)?

    UPDATE: SCOTUSblog reports that Williams II has been re-distributed for the court’s June 5 conference.

    FURTHER UPDATE: A reader points out: “Actually, it is the third petition for cert. in this saga. The first was GVR’d in light of State Farm, the second granted, and now this one.” Good point. We’ve corrected our post accordingly. We’re still referring to this as Williams II for now, since the Supreme Court’s opinion (if cert. is granted) will be its second in this case.

  • Williams Cert. Petition Moved to May 29 Conference

    Yesterday we reported that the U.S. Supreme Court did not rule on the second cert. petition in Philip Morris v. Williams at its May 22 conference, even though the court’s online docket indicated that the petition was on the May 22 conference list. Today the court’s docket has been updated to reflect that the Williams petition has been moved to the court’s May 29 conference.

  • No Ruling Yet on Second Cert. Petition in Philip Morris v. Williams

    As we noted in a prior post, the second cert. petition in Philip Morris v. Williams was distributed for consideration at the Supreme Court’s May 22 conference. (See the online docket.) Today the Supreme Court has released its Order List showing the rulings made at the May 22 conference. The list makes no mention of Williams. Apparently, the court has deferred consideration of that petition to a later conference.

  • U.S. Supreme Court Will Consider Cert Petition in Philip Morris v. Williams at May 22 Conference

    We previously blogged about Philip Morris’s petition for review from the Oregon Supreme Court’s decision on remand in Philip Morris v. Williams. The Supreme Court is set consider that petition during its May 22 conference, according to the online docket.

    It will be quite interesting to see whether the Supreme Court grants this petition. Many observers viewed the Oregon Supreme Court’s opinion as a slap in the face (or more colorful metaphors) to the Supreme Court. My co-blogger Jeremy Rosen suggested that a summary reversal might be in order. On the other hand, Howard Bashman considered the case an “unattractive vehicle” for certiorari, since the Oregon Supreme Court couched its decision in terms of Oregon procedural law, rather than federal constitutional principles.

    SCOTUSblog has identified this petition as one of its “Petitions to Watch,” meaning that Tom Goldstein at Akin Gump thinks the petition has a reasonable chance of being granted. SCOTUSblog also provides links to all the briefing at the petition stage, including the petition, the brief in opposition, the reply, and amicus briefs by the U.S. Chamber of Commerce, the Washington Legal Foundation, Associated Oregon Industries, and the Products Liability Advisory Council.

  • Philip Morris v Williams—It’s Baaaaaaack (Yet Another Punitive Damages Cert Petition to SCOTUS)

    When the Oregon Supreme Court thumbed its nose at the directives from the US Supremes in Philip Morris v. Williams, affirming a punitive damages award (one that’s 97 times the amount of the compensatory award) despite the trial court’s failure to instruct the jury that it should not punish for harm to nonparties, many of us were a bit surprised. (We’ve since noticed that the Oregon Supreme Court has something of a pattern going here.)

    Philip Morris is now knocking on the Supreme Court’s door again, this time with a cert petition that offers up these issues:

    QUESTIONS PRESENTED

    When this case was last before it, this Court reversed the decision of the Oregon Supreme Court and held that due process precludes a jury from imposing punitive damages to punish for alleged injuries to persons other than the plaintiff. Philip Morris USA v. Williams, 127 S. Ct. 1057, 1065 (2007). This Court then remanded the case to the Oregon Supreme Court with directions to “apply the [constitutional] standard we have set forth.” Ibid. On remand, however, the Oregon Supreme Court refused to follow this Court’s directive. Instead, the Oregon court “adhered to” the judgment that this Court had vacated because it found that Philip Morris had procedurally defaulted under state law and thereby forfeited its claim of federal constitutional error. App., infra, 22a.

    The questions presented—the second of which was accepted for review but not reached when this case was last before the Court—are:

    1. Whether, after this Court has adjudicated the merits of a party’s federal claim and remanded the case to state court with instructions to “apply” the correct constitutional standard, the state court may interpose—for the first time in the litigation—a state-law procedural bar that is neither firmly established nor regularly followed.

    2. Whether a punitive damages award that is 97 times the compensatory damages may be upheld on the ground that the reprehensibility of a defendant’s conduct can “override” the constitutional requirement that punitive damages be reasonably related to the plaintiff’s harm.

  • Dan Markel’s Article on Retributive Damages

    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.

  • 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.

  • 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?