Los Angeles superior court judge Rex Heeseman, who frequently writes opinion pieces on insurance law and punitive damages, has written an op-ed that appears in today’s Daily Journal (subscription required to access article).  Judge Heeseman’s piece examines the likely impact of the recent Bullock opinion, which upheld a 16 to 1 ratio of punitive to compensatory damages.  Interestingly, he writes that the majority opinion’s analysis is “arguably contrary to Campbell,” to the extent that the majority folded the defendant’s financial condition into the BMW guidepost analysis.   (We struck the same note in our amicus filing on behalf of the U.S. Chamber of Commerce.) 

Ultimately, Judge Heeseman predicts that plaintiffs will cite Bullock to show that ratios can exceed 9 to 1 in cases of “extreme” reprehensibility, and defendants will argue that Bullock should be limited to its particular facts.  That sounds about right with respect to trial court litigation. I would add that, when those cases go up on appeal, defendants will argue that the majority opinion in Bullock should not be followed by other appellate courts because it is out of step with federal and state law, as pointed out in Justice Kitching’s dissenting opinion.

Last month we had two eight-figure punitive damages in California (see our posts here and here).  Now we have another one.   According to this story in Rafu Shimpo, a jury in Los Angeles has awarded $32.8 million in damages – – including $17.5 million in punitive damages – – in a dispute over the development of a $2 pen.  The plaintiff alleged that Pentel of America and its Tokyo-based parent company maliciously stole the concept of the HyperG, a smooth-writing gel pen.      

I should have posted this three weeks ago, but better late than never.  My colleague Felix Shafir, occasional contributor to this blog, has written a short paper for the Washington Legal Foundation article entitled Class Action Certification of Punitive Damages Claims After Wal-Mart v. Dukes.

California juries are in a giving mood when it comes to punitive damages lately.  On top of last week’s mega-verdict against Ford, a jury in L.A awarded $65 million in punitive damages yesterday against the Encino-Tarzana Regional Medical Center, according to this report in the Contra Costa Times.  The plaintiff alleged she was sexually abused by a male nursing assistant at the hospital.

The compensatory damages award is $2.36 million, resulting a punitive-to-compensatory damages ratio of roughly 27.5 to one, which will be very difficult for the plaintiff to defend in post-trial motions and on appeal.  Not surprisingly, the article says the hospital is already planning to appeal.

I’m a little late in reporting this story.  The Sacramento Bee reported last week that a jury in San Francisco awarded $73 million in damages against Ford, including $50 million in punitive damages, in a lawsuit arising from a fatal accident involving an Econoline van.  The plaintiffs accused Ford of despicable conduct in failing to notify consumers of a tire recall notice from Goodyear. Ford took the position that the deaths would not have occurred if the plaintiffs had been wearing their seat belts.

The Washington Legal Foundation has published a Legal Backgrounder attacking a recent pro-plaintiff report on punitive damages.  The WLF report, authored by Victor Schwartz and Cary Silverman at the Shook Hardy firm, takes aim at a white paper released earlier this year by the Center on Justice & Democracy.

The WLF report makes some of the same points we made in our post about the white paper, including the observation that the white paper, despite claiming that limits on punitive damages are bad for society, offers no actual evidence that society is worse off in the majority of states that have now adopted caps or other limitations on punitive damages.

We blogged last year about a whopping $500 million punitive damages award out of state court in Las Vegas, based on allegations that the manufacturers and suppliers of the anesthetic Propofol acted with malice by supplying the drug in vials larger than necessary for single use, thereby tempting healthcare providers to reuse the vials.  That case is currently pending before the Nevada Supreme Court. 

Bloomberg now reports that another Vegas jury has awarded an additional $162 million in another lawsuit based on the same allegations.  And stay tuned, because a separate jury in the same courthouse has just awarded $14 million in compensatory damages in a similar case, and will consider punitive damages later this week.  (The defendants in these cases are Teva Parenteral Medicines Inc., Baxter Healthcare Corp., and McKesson Corp.)

UPDATE (10/13/11):  Bloomberg reports that jury #3 has awarded another $90 million in punitive damages.  So the defendants are looking at a combined $752 million in punitive damages in these three cases.

We previously reported on the appellate decision that allowed a plaintiff to proceed with a punitive damages claim against Johnson & Johnson for allegedly failing to provide sufficiently specific warnings for its pain reliever Motrin, and allegedly withholding information about Motrin from the FDA.  As we noted in May, the California Supreme Court denied Johnson & Johnson’s petition for review (and our request for depublication.)

Today’s Daily Journal (subscription required) reports that, after a six-and-a-half week trial, a jury awarded the plaintiff $48.2 million in damages, including $15.6 million in punitive damages.

We’ve noted in prior posts that California appellate courts have split on the question of what to do about a punitive damages award when the court determines that the compensatory damages must be reduced.  Traditionally, courts would order a reduction of the punitive damages, or at least a new trial, to account for the change in the compensatories.  But more recently we’ve seen some courts simply affirming the punitive damages without regard to the change in the compensatories (and therefore without regard to the change in the punitive-to-compensatory ratio).  This unpublished opinion from the Second Appellate District, Division Seven, falls into that category.  The court orders the trial court to reevaluate the amount of compensatory damages, but affirms an award of $50,000 in punitive damages without even knowing what the final compensatory amount will be.

This case isn’t as extreme as Behr v. Redmond, where the Court of Appeal reduced the compensatory damages from $4 million to $1.6 but left a $2.8 million punitive damages award undisturbed.   Unfortunately, when the defendant in Behr petitioned for review to the California Supreme Court, he didn’t get a single vote.  Perhaps the Supreme Court didn’t think that case was the right vehicle to settle this issue, but will take up the issue in a future case.  I hope so, because the lower courts are all over the map on this issue and could use some guidance.

Reuters reports that film producer Jon Peters has been hit with a verdict for $822,000 in compensatory damages and $2.5 million in punitive damages (about a 3:1 ratio) in a case involving claims of sexual harrassment and hostile work environment.

Given that the compensatory damages are “substantial” by most courts’ definition (but see the recent Bullock appellate court decision, discussed here), and given that this case does not appear to involve physical injury, it will be interesting to see whether the punitive damages (if found to be supported by clear and convincing evidence of malice) will be cut on postrial motions or on appeal to a 1:1 ratio, on excessiveness grounds.

Related posts:

$1.16 punitive damages verdict returned against Walgreens: will 13:1 ratio stick? [describing recent Calfornia punitive damages verdict in an employment tort case]

Thomas v. iStar Financial, Inc.: $1.6 million punitive damages award in retaliatory discharge case is excessive [discussing appellate opinion that affirmed a trial court order reducing the $1.6 million punitive award to $190,000 (less than a 1:1 ratio)];

Sex and punitive damages [referencing recent New Jersey appellate court ruling on punitive damages in a sexual harrassment case]