Texas Lawyer reports that a Dallas federal judge has cut last month’s $1.04 billion punitive damages award against Johnson & Johnson down to $540 million.  That ruling was expected, as we noted in our prior post about this case.  It is also no surprise that both sides are unhappy with that result, and both sides have vowed to appeal.

What is surprising, however, is that the plaintiffs have hired Ken Starr to defend the billion-dollar punitive damages award on appeal.  He has been an outspoken critic of punitive damages throughout his career.  In his days as Solicitor General, he chaired a working group that drafted a report calling for various tort reforms relating to punitive damages.  A few years later, he gave an address at Fordham law school, advocating for the total abolition of punitive damages:  “Abolishing punitive damages would be an important, non-tinkering step toward real reform in the law.”  (See Law and Lawyers: The Road to Reform (March 1995) 63 Fordham L. Rev. 959, 968.)

Of course, lawyers are professional advocates and we often make arguments for our clients that differ from our own private beliefs.  Still, it’s surprising that Ken Starr would take this particular case.  The plaintiffs are probably thinking that his background will lend credence to the argument that, if billion-dollar punitive damages are to exist at all, this is the appropriate case for it.

Reuters is reporting that a jury in Ohio has awarded $2 million in compensatory damages and $10.5 million in punitive damages to a man who claimed he developed testicular cancer from exposure to a chemical that leaked from a DuPont plant. 

A DuPont spokesman said the company will appeal because the verdict “was the result of trial rulings that misrepresented the findings of an independent science panel and misled jurors about the risks” of exposure to the chemical in question (perfluorooctanoic acid, also known as PFOA or C8).

The EEOC believes that the Age Discrimination in Employment Act authorizes punitive damages.  (See Enforcement Guidance on Retaliation and Related Issues.)  Courts often find the EEOC’s interpretations of federal employment laws persuasive.  But in this case, the Fifth Circuit was not persuaded.

The Fifth Circuit issued an opinion last week reaffirming its view that the ADEA does not authorize punitive damages.  (Vaughn v. Anderson Regional Medical Center.)

Plaintiff’s counsel in that case told Bloomberg BNA that the Fifth Circuit stands alone in holding that punitive damages are unavailable under the ADEA.  Not so, according to the author of an ADEA treatise.  Howard Eglit, who writes the treatise Age Discrimination, says numerous courts have addressed whether the ADEA authorizes punitive damages, and “the response has been unanimously in the negative.”  (2 Age Discrimination § 8:110 (2d ed.).)

The plaintiff’s counsel in Vaughn plans to seek Supreme Court review to resolve the split of authority that he says the Fifth Circuit has created, but Eglit’s treatise suggests it will be an uphill battle to show that such a split even exists.

Claims Journal reports that a Jackson County Missouri jury has awarded $20 million in punitive damages and $450,000 in compensatory damages to a plaintiff suing American Family Insurance for retaliation and age and sex discrimination.  Missouri is proving to be a very friendly venue for plaintiffs seeking punitive damages.  Just ask Johnson & Johnson and Abbott. 

Last Thursday, a federal jury in Dallas awarded $32 million in compensatory damages and $1 billion in punitive damages to six California plaintiffs who alleged they were injured by defective hip implants made by Johnson & Johnson’s DePuy Orthopedics unit.  The company immediately announced its plans to appeal, Reuters reports. 

Before any appeal, however, it is likely that the trial judge will reduce the punitive damages.  The judge in this case already reduced a big punitive damages award involving the same hip implants.  He ruled in July that a $500 million verdict was excessive, and reduced it to $151 million under Texas state law.

Johnson & Johnson was able to avoid punitive damages when facing similar claims in Los Angeles a few years ago, as we reported at the time.  But now Johnson & Johnson has to contend with this massive award, on top of the three big punitive damages verdicts in the Missouri talc litigation.  2016 has not been a good year for Johnson & Johnson in the courtroom. 

The Missouri Court of Appeals, Eastern District, has affirmed a judgment awarding $15 million in compensatory damages and $23 million in punitive damages against drug maker Abbott Laboratories.  The plaintiffs consisted of 29 individuals who claimed they suffered birth defects because their mothers took Abbott’s antiepileptic drug Depakote.  The appellate court rejected Abbott’s argument that plaintiffs failed to prove Abbott deliberately disregarded the safety of others when marketing the drug.   

Johnson & Johnson will soon be challenging some very large Missouri punitive damages awards, so they can’t be too happy to see this opinion.  But the court in this case applied Minnesota law to the punitive damages claim, so the decision should not have any direct impact on J&J’s talc appeals.

Fortune reports that a jury in Missouri has awarded $65 million in punitive damages and $2.5 in compensatory damages against Johnson & Johnson, in favor of a woman who claims J&J’s baby powder caused her to develop ovarian cancer.

This is the third time a Missouri jury has returned a huge verdict against Johnson & Johnson based on claims that its talc-based powders caused ovarian cancer.  The company has appealed the other two verdicts and plans to appeal this one too. It seems unlikely that the 26-to-1 ratio of punitive damages to compensatory damages in this case could survive post-trial motions and appeal.

It’s a good week to be a Florida plaintiff seeking punitive damages.

CVN news reports that a Fort Lauderdale jury has awarded a smoker’s family $20 million in punitive damages (on top of $9 million in compensatory damages) against R.J. Reynolds.

And The Real Deal reports that a bankruptcy judge in Miami has awarded $12.5 million in punitive damages against developer D.R. Horton for allegedly improper lending practices that contributed to the bankruptcy of a homeowners association.

The Long-Beach Press Telegram reported earlier this week on a $1.7 million punitive damages verdict against the Community Hospital of Long Beach and a co-defendant, Memorial Psychiatric Health Services.

According to the article, the case involved three former hospital employees who claimed they were subjected to harassment and discrimination by an openly gay male nurse who worked for the defendants.  The jury awarded one of the plaintiffs $1.5 million in punitive damages and $165,175 in compensatory damages (a 9-to-1 ratio), and awarded the other two each $100,000 in punitive damages and $1.4 million in compensatory damages (a .07 to 1 ratio).

According to the article, both defendants presented evidence that they could not afford to pay even the compensatory damages, much less a sizable punitive damages award.  That suggests the defendants will argue in post-trial motions that the award is excessive in relation to their financial condition.

Reuters is reporting that U.S. District Judge Ed Kinkeade of the Northern District of Texas has reduced a $360 million punitive damages award against Johnson & Johnson.  A jury had awarded that amount, on top of $140 million in compensatory damages, in a case involving allegedly defective hip implants.  Per the story, the judge has reduced the total award to $151 million, pursuant to a Texas statute limiting punitive damages. That total suggests the punitive damages were reduced to $11 million, but the story does not elaborate.