$18 million punitive damages award (on top of $18.7 million compensatory award): A Florida jury was not pleased with the behavior of a suspended doctor (James Scott Pendergraft IV), whose clinic reportedly mishandled the medical services provided to patient who sought an abortion, but who ended up giving birth to a severely disabled child. The Orlando Sentinel reports that the trial judge last week denied posttrial motions challenging the July 2011 verdict.

$80 million punitive award (on top of $11.5 million compensatory award): According to a plaintiffs’ firm press release, a West Virginia jury found that the defendant nursing home was responsible for the dehydration death of one of its patients. An appeal is apparently in the works. The case is Douglas v. Manor Care Inc.

Honorable mention — punitive damages anticipated after jury awarded $2.287 compensatory damages: the Pennsylvania Record says that, after a three week trial in a case titled Williams vs. Willow Terrace et al., a jury found nursing home defendants were responsible for the poor care of a patient who developed pressure ulcers and ultimately died from them.

We recently mentioned a pending case in which a Missouri woman sued her mom (Alberta Comstock) for wrongful death after the mom allegedly shot her ex-husband (the plaintiff’s adoptive father). The civil jury (no criminal charges have ever been filed) found no compensatory damages were owed, but awarded $125,000 in punitive damages.

According to various news reports (e.g., Judge Tosses Judgment in Springfield Man’s Death), the trial judge voided the judgment as being “so inconsistent as to be self-destructive.” The judge reportedly rejected the plaintiff’s request to add nominal damages to the judgment in order to support the punitive award, which the judge found he had no authority to do. The judge also rejected plaintiff’s request for a new trial because her counsel failed to seek appropriate curative measures while the jury was still empaneled. The judge reasoned, “This Court does not have the latitude to grant her a new trial as a result of the inconsistent verdict,” and explained his view the plaintiff’s attorney should have recognized the inconsistent verdict and asked the judge “to instruct the jury to award . . . nominal damages.”

For more on the topic of punitive damages in the context of nominal or nonexistent compensatory damages, see our prior post here.

The Fresno Bee has reported that a jury last Friday awarded $88,000 in compensatory damages and $1.16 million in punitive damages to pharmacist Sami Mitri, who said Walgreen fired him in retaliation for reporting Medicare fraud. The case (no. 1:10-cv-00538-AWI -SKO) was brought in federal court under a whistleblower statute.

Five-figure and low six-figure compensatory damages awards have, in some cases, been found to be substantial enough to trigger a presumption that a single-digit ratio between compensatory and punitive damages is the most that can withstand a due process challenge for excessiveness. (See, e.g., the recent case survey discussed here.) The Walgreen award represents a double-digit ratio of more than 13:1. But Walgreen Co. is a pretty big company (the largest drug store company in the U.S.). Under the analysis in the recent Bullock v. Philip Morris opinion (discussed here), might an appellate court find a departure from the single-digit presumptive limit is warranted? Or might a court reviewing the award in this case hew to the U.S. Supreme Court’s statement that “The wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award”? (See State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 427 [123 S.Ct. 1513, 155 L.Ed.2d 585].)

In a timely post (given this week’s Bullock v. Philip Morris opinion) the folks at Dechert LLP have posted the results of punitive damages research they did to “list of all the cases we’ve been able to find where a court held that, constitutionally, punitive damages could not be assessed in an amount greater than a one-to-one ratio.”

There’s epic litigation, and then there’s Bryant v. Mattel (aka “Mattel v. MGA”). Back in 2008, we had a post right here on this blog titled “No Punitive Damages Awarded in Bratz Trial.” Well, a bit more of the dolly drama has played out since then, requiring this update. In the megalitigation pitting the House of Barbie against the Bratz pack, the parties are up to two trials before two different district judges, plus one big trip to the Ninth Circuit and several smaller trips, and more than 10,700 filings generated by the parties.

Now, as recounted in a great many media reports (e.g., from the LA Times and Bloomberg), federal district court judge David Carter yesterday handed down an order awarding MGA $85 million in punitive damages. Awards of that size can be good candidates for a constitutional excessiveness challenge, often because such awards tend to be many times greater than the 1:1 ratio (or sometimes higher single-digit ratio) recognized as appropriate in comparison to significant compensatory damages. But in this case, the award of punitive damages is equal to the award of compensatory damages, so a ratio argument may not be the focus of any excessiveness challenge that Mattel mounts in posttrial motions or on appeal.

This award is atypical of most large punitive damages awards because it was made by a judge, not a jury. MGA’s basis for seeking punitive damages arose from a claim for willful misappropriation of trade secrets. That claim was tried to the jury, but the applicable California statute authorizes the court to award punitive damages, and the statute caps any award at twice the compensatory damages. Cal. Civ. Code § 3426.3(c). MGA asked the district court to award the maximum amount of punitive damages—double its compensatory damages—but the court declined to do so.

This won’t be the last time you hear about this case. In addition to the large awards of compensatory and punitive damages, the district court’s companion order saddled Mattel with paying MGA some $140 million in attorney’s fees and costs. (Yes, that’s a nine-figure fee award.) With combined awards of more than $300 million, you can expect Mattel to appeal.

All in all, it’s quite a reversal of fortune for Mattel, which won the first trial and obtained millions in damages against MGA, only to see the Ninth Circuit reverse the judgment and order this new trial. According to one analyst’s estimate (as quoted in the Financial Times), it has likely cost Mattel some $400 million in legal fees since 2004 to get to this point. For MGA’s part, its CEO Isaac Larian reportedly said yesterday that the protracted litigation has damaged the Bratz brand by an estimated $1 billion, and that MGA intends to seek recompense in a separate antitrust proceedings against Mattel.

Here’s an interesting cross section of punitive damages news over the last week, offering a non-statistically significant glimpse into the punishment meted out for certain inappropriate (bit of understatement there) behavior:

Gang rape — $1.03 million compensatory damages; $1.5 million punitive damages (about 1.5:1 ratio). As reported by the Wisconsin Law Journal, a state appellate court found last week that $1.5 million is not an excessive punitive damages award for the trial judge to have awarded against three men after a default prove-up hearing in a case in which the men were alleged to have drugged and raped the plaintiff. (See opinion in Pausch v. Cormier.) However, because the judge’s ruling did not make clear whether the award was assessed individually against the defendants ($500,000 owed by each), or was to be awarded jointly and severally against them, the court of appeal could not determine whether the trial court should have taken the defendants’ financial condition into account (which, under Wisconsin law, would be appropriate only if the awards were made individually and not jointly). The matter was remanded for clarification by the trial judge.

Diocese’s fraudulent concealment of molestation — $2.4 million compensatory damages; $2.6 million punitive damages (less than 1:1 ratio). The National Catholic Reporter notes that last month the Illinois Supreme Court rejected a final plea for relief from the Catholic Diocese of Belleville, which had sought review of an intermediate appellate court decision affirming an adverse judgment that included punitive damages awarded to molestation victim James Wisniewski. Notably, the diocese did not argue that the punitive award was excessive, but instead challenged the liability finding on statute of limitations and evidentiary error grounds.

Adultery resulting in “alienation of affection” — $1.275 million compensatory damages; $1.025 million punitive damages (a bit more than 1:1 ratio). A North Carolina jury has awarded compensatory and punitive damages against a man who, the plaintiff claimed, had an affair with the plaintiff’s wife and caused the breakup of a marriage that the plaintiff said had been characterized by “genuine love and affection.” Specifically, according to a Salisbury Post article, the jury awarded $425,000 for alienation of affection and $175,000 in punitive damages on that count, plus $850,000 for “criminal conversation” (i.e., sex outside of marriage) and the same amount for punitive damages on that count. The article observes that this was far more than the plaintiff had asked for, the defendant filed for bankruptcy, and the case (McCoy v. Freeman) settled after trial, effectively insulating the award from any appellate review.

Update (8/26): last March another North Carolina court case involving “criminal conversation” (reported here and here) resulted in a default judgment of $30 million to a jilted spouse (Carol Puryear) who sued the cheating spouse’s lover (Betty Devin). The total is comprised of $10 million in compensatory damages and $20 million in punitive damages.

Update (8/21/11): see this article (“Even a sex-toy purveyor can have a sexually hostile workplace“) about a divided New Jersey appellate division ruling last week in Longo v. Pleasure Productions Inc. The court upheld a Florida jury’s award in an employment discrimination case brought by a plaintiff who worked at a sex toy company. She complained of harrassment by a co-worker and retaliatory discharge, and received a compensatory damages award of $150,000 (awarded jointly against an individual and against the employer), plus $500,000 in punitive damages against the employer only.

As we’ve previously reported, a Wisconsin jury awarded $5 million in punitive damages to the son of Jay Link, the aptly named founder of a meat snacks company. The son proved a breach of fiduciary duty claim based on allegations that the father squeezed him out of the family’s beef jerky business.

As recounted in several publications, including a write-up by the Courthouse News Service, the Wisconsin Supreme Court has now agreed with the intermediate appellate court that Mr. Link’s challenge to the award was procedurally defective because his new trial motion was filed two minutes after the normal 4:30 p.m. closing time for the clerk’s office. Although the clerk accepted the filing as timely, the high court held the clerk had no discretion to do so, and that the trial court therefore had no authority to enter its order reducing the damages to $736,000.

As they say, “timing is everything.” The delay in filing comes out to a more than $2 million-per-minute mistake, assuming that other proceedings on remand (concerning the underlying fiduciary duty claims) don’t indirectly lead to some relief from the punitive damages award.

Starting tomorrow, I will be taking a six-week sabbatical in order to do some traveling and spend time with my family.  I probably won’t be doing much blogging my sabbatical, but my colleagues will be filling in for me, keeping an eye out for noteworthy developments in punitive damages law and litigation.  See you in September!

I’ve been meaning to post about HBO’s “Hot Coffee” documentary ever since reading this Reuters interview with the filmmaker (“Hot Coffee” shows the other side of “frivolous lawsuits”).  I can’t comment on the film itself because I haven’t seen it yet, but I was struck by the overall theme of the article: the author felt compelled to make a film to tell “the other side” of civil litigation, because “[n]obody talks about frivolous defenses” and the other evils perpetrated by defense lawyers and their clients. 

I guess it’s all a matter of perspective.  The author perceives that plaintiffs’ lawyers have been unfairly vilified and portrayed as bad guys to the American public.  From my perspective, the opposite seems true.  My perception is that nearly every depiction of civil litigation in the media and pop culture portrays plaintiffs’ lawyers as heroes, fighting for the little guys against evil corporations who will stop at nothing to make a buck.  I can think of quite a few films that glorify plaintiffs’ lawyers, such as Erin Brockovich, A Civil Action, Philadelphia, Class Action.  And didn’t we just have another documentary film, Bananas, depicting plaintiffs’ lawyers fighting against evil corporations?  I can’t really think of any films that glorify civil defense lawyers.  Don’t get me wrong, I’m not quitting my job to make a film about the virtues of defense lawyers.  I just don’t share the author’s views about how civil litigation is usually presented to the American public.   

The Associated Press is reporting that a Maryland jury has awarded $1 billion in punitive damages and $495 million in compensatory damages against Exxon Mobil in a lawsuit brought by 160 families and businesses affected by a gasoline leak at a gas station.  Exxon will undoubtedly file post-trial motions and, if necessary, an appeal.  If they can’t knock out the punitive damages entirely, there’s a good chance they’ll succeed in getting the ratio reduced to 1 to 1.  The Exxon Shipping decision won’t provide direct precedent, because the punitive damages in that case were reduced under federal maritime law.  But even without Exxon Shipping, Exxon will have a strong argument that any ratio in excess of 1 to 1 is excessive. 

Whatever happens, the appellate process shouldn’t drag on for nearly as long as the Exxon Valdez case.  In that case the Ninth Circuit repeatedly remanded to the district court to re-evaluate the amount of punitive damages in light of the latest Supreme Court decisions.  By the time the case would make it up on appeal again, the Supreme Court would issue a new decision.  I don’t foresee another string of Supreme Court decisions on excessive punitive damages this time around; the Court as presently constituted has declined several opportunities to jump back into this area.