The Fifth Circuit issued this opinion yesterday, reversing a $151 million judgment against Johnson & Johnson and its subsidiary, DePuy Orthopaedics, in a case involving alleged defects in its artificial hip implants.

The original jury award was $502 million, including $360 million in punitive damages, but the trial court reduced punitive damages award to $9.6 million pursuant to Texas’s statutory cap.

On appeal, the Fifth Circuit concluded that the entire award was tainted by highly prejudicial and irrelevant evidence about (1) bribes that Johnson and Johnson allegedly paid to foreign officials, including Saddam Hussein, and (2) allegations of racial discrimination.  The court found that plaintiffs’ counsel Mark Lanier invited the jury to infer J&J ‘s liability and punish it based solely on these improper considerations.

The court also found that Lanier misled the jury by creating the impression that two expert witnesses had volunteered to testify for the plaintiffs without any compensation, when in fact Lanier had written a $10,000 check to the witnesses’ favorite charity before trial, and made large payments directly to the witnesses after trial.

Lanier, undeterred, told Bloomberg that he expects to get an even larger verdict when the case is retried. 

The Ninth Circuit issued a published opinion today that expressly disagrees with a decision of the Fifth Circuit.

The issue is whether punitive damages are available in unseaworthiness cases under general maritime law.   The Ninth Circuit answered this question in the affirmative in 1987, in a case called Evich v. Morris.  But the Fifth Circuit ruled a few years ago that a subsequent Supreme Court case impliedly overruled Evich.

Not so, says the Ninth Circuit:

The Fifth Circuit’s leading opinions . . . are scholarly and carefully reasoned, but so are the dissenting opinions, which to us are more persuasive.

This case has the makings of a good cert. petition, with an express circuit split on an issue of federal common law.  Stay tuned to see whether the Ninth Circuit agrees to take this one en banc.

Bloomberg Technology has this story about today’s oral argument in the Fifth Circuit in the case in which a jury awarded $360 million in punitive damages against Johnson & Johnson for allegedly defective hip implants.

Related posts:

$360 million punitive damages award reduced under Texas cap

The Fifth Circuit issued an en banc opinion yesterday addressing whether punitive damages are available under the Jones Act or general maritime law (a species of federal common law) for a defendant’s failure to maintain a seaworthy vessel.  The court answered that question “no.”

The plaintiff in this case was the personal representative of a man who “met his death in the service of his ship.”  The plaintiff brought a claim for unseaworthiness under general maritime law and a claim for negligence under the Jones Act, seeking both compensatory and punitive damages.  The trial court ruled that punitive damages are unavailable for either claim, but a three-judge panel of the Fifth Circuit reversed.  The panel believed that the Supreme Court’s decision in Atlantic Sounding v. Townsend permits recovery of punitive damages under maritime law for causes of action, like unseaworthiness, that predate the Jones Act.

The en banc court disagreed.  It held that the case is controlled not by Townsend but by the Supreme Court’s earlier decision in Miles v. Apex Marine Corp., which held that the Jones Act limits a seaman’s recovery for unseaworthiness to “pecuniary losses.”  Because punitive damages are non-pecuniary, the court concluded that Miles prohibits punitive damages for claims of unseaworthiness.  The Court distinguished Townsend on the ground that it involved claims for “maintenance and cure,” not unseaworthiness.

A dissenting opinion argues that Townsend cannot be so easily distinguished.  According to the dissent, Townsend stands for the broader proposition that punitive damages are available for all maritime claims unless Congress has expressly prohibited them.  Because Congress has not expressly disallowed punitive damages for unseaworthiness claims, the dissent would permit them.

That’s a thumbnail sketch of the case.  It’s actually a lot more complicated, and consists of five separate opinions spanning 73 pages.

It won’t be surprising if this case ends up in the Supreme Court.

HT: How appealing

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Fifth Circuit grants rehearing to address availability of punitive damages in seaworthiness cases

 

The U.S. Supreme Court’s last two punitive damages cases both involved maritime law (Exxon Shipping v. Baker and Atlantic Sounding Co. v. Townsend.)  Could this be the next one? 

Howard Bashman reports: “Fifth Circuit grants rehearing en banc to reconsider whether seamen may recover punitive damages for their employer’s willful and wanton breach of the general maritime law duty to provide a seaworthy vessel.”