The Beverly Hills Courier is reporting that a Los Angeles jury has awarded $3.5 million in compensatory damages and $4.8 million in punitive damages against drug store chain Rite Aid.  The plaintiff, a former Rite Aid employee, claimed that Rite Aid discriminated against her based on disability (psychiatric illness) and retaliated against her for complaining that a manager sexually harassed her.  This is the largest California punitive damages award we’ve heard about in several months.

Although we focus primarily on California punitive damages litigation, we occasionally discuss interesting punitive damages decisions from other jurisdictions.  This recent opinion from Kentucky caught our attention.

In it, the court declares unconstitutional a Kentucky law that prohibits the award of punitive damages against a dram shop.  The decision is based on a provision of the Kentucky constitution which, as interpreted by the Kentucky courts, prohibits the state legislature from limiting the remedies available to plaintiffs in personal injury or wrongful death actions. 

That’s a stark contrast to California law, where we have no such provision in the constitution and, as noted last week, our legislature has prohibited the recovery of punitive damages in all wrongful death actions (not just a subcategory of cases against a particular class of defendants).  So despite California’s reputation for a pro-plaintiff litigation climate, here’s at least one situation in which California law is not as plaintiff-friendly as another state.

Two years ago, Judge Jeremy Fogel of the Northern District of California entered a judgment against Canadian resident Adam Guerbuez, ordering him to pay Facebook $873 million, half of which is punitive damages, for violating the “CAN-SPAM Act.”  The Quebec Superior Court has now recognized the enforceability of that judgment in Canada, according to this report in the Montreal Gazette.

Mr. Guerbez doesn’t seem all that concerned about the award.  In fact, he seems proud.  He’s billing himself as “the $1 billion dollar man” on his personal blog.  He didn’t bother to contest the suit, and I’m guessing he doesn’t have $873 million laying around, so this may be another award that is more symbolic than anything else. 

As I have commented before, I fear that the publicity surrounding these massive but uncontested and uncollectible awards may be contributing to a culture that views 9-digit punitive damages awards as an accepted part of our legal system.

Courthouse News is reporting that a Washington DC federal district court has ordered the Republic of Iran to pay $92 million, including $61.3 million in punitive damages, to the victims of the 1983 bombing of the Marine barracks in Beirut.  This is the latest in a series of large punitive damages damages awards against Iran.  As we have noted, the awards have only a symbolic significance because Iran never pays a penny.

An article in today’s Los Angeles & San Francisco Daily Journal describes an interesting punitive damages strategy by the plaintiffs’ counsel in a lawsuit alleging that a woman (Marie Edwards) was killed when her Lexus suddenly accelerated.  The article, “Toyota Fends off Punitive Damages Claims” (subscription required), describes correspondence in which plaintiffs’ counsel argues that he will be able to obtain punitive damages based on the pain and suffering experienced by the decedent in the moments before her death. 

I’m not sure that strategy is going to work.  Under California law, plaintiffs in a wrongful death action are not entitled to recover punitive damages.  (See, e.g., Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 794 [“‘[I]t has long been established in California that punitive damages may not be recovered in a wrongful death action’”].)  The estate of the decedent can recover punitive damages in a survivorship action, but the estate cannot recover damages for the decedent’s pain and suffering, because those damages are, by statute, extinguished if the decedent dies before entry of a verdict. 

Perhaps the plaintiffs here intend to argue that Ms. Edwards’ momentary distress or pain and suffering represents “actual harm,” which even though it is legally noncompensable, could nonetheless be considered as the basis for imposing punitive damages in the survivor action.  There would seem to be a good argument on the defense side, however, that it would be improper to base punitive damages on an element of compensatory damages that has been expressly rejected by the Legislature.  Such an approach would effectively be an end-run around the Legislature’s policy decision.  Moreover, using a disapproved measure of compensatory damages as the hook for punitives would introduce an element of unpredictability and arbitrariness, something the U.S. Supreme Court has consistently railed against.

In our previous report about an $18.5 million punitive damages award against Boy Scouts of America, we predicted that the case would be difficult to settle because of (1) an Oregon statute providing that 60 percent of punitive damages go to the state, and (2) Oregon’s past practice of insisting on getting its cut, regardless of any settlement agreement between the parties.

The case wasn’t so difficult to settle after all. Oregon Public Broadcasting reports that the case has settled. The amount of the settlement is confidential, except for the fact that Oregon agreed to accept $2.2 million in punitive damages, much less than its statutory share of the verdict amount.

This unpublished opinion illustrates the importance of a carefully worded verdict form.

The plaintiff alleged she was sexually assaulted by Alfred Escobar, a group counselor. The plaintiff sought punitive damages from Escobar and his employer, Safety Consultant Services (SCS). The jury awarded no punitive damages against Escobar, but awarded $90,000 in punitive damages against SCS. The trial court, however, vacated the jury’s punitive damages award and granted judgment in favor of SCS on that issue.

The plaintiff appealed and the California Court of Appeal (Second Appellate District, Division One) affirmed. The plaintiff argued that SCS could be held liable for punitive damages based on its own conduct, even if Escobar’s conduct did not support punitive damages. But the Court of Appeal rejected this argument based on the wording of the verdict form that was submitted to the jury. The verdict form stated: “If you decide that defendant Alfred Escobar’s conduct caused plaintiff Cheryl McCall harm, you must decide whether that conduct justifies an award of punitive damages against defendant Alfred Escobar and, if so, against defendant Safety Consultant Services, Inc.” Thus, the only theory presented to the jury was that SCS could be liable for punitive damages only if Escobar was liable for punitive damages. Because the jury awarded no punitive damages against Escobar, plaintiff could get no punitive damages from SCS.

Legal Blog Watch reports that the proprietors of a gossip blog called TheDirty.com have been hit with an $11 million default judgment, including $10 million in punitive damages.

I get a little uneasy whenever I hear about a punitive damages award for something published on a blog. We bloggers shouldn’t have to live in fear of a big punitive damages award every time we sit down at the keyboard, right? Well, in this particular instance, it wouldn’t have been too difficult to predict that the material in question would cause trouble.

The plaintiff, a cheerleader for the Cincinnati Bengals, alleges she was defamed when the blog reported accusations that she had sex with Bengal football players and had two venereal diseases. Did I mention that the plaintiff is not only a cheerleader but also a school teacher, and that the blog accused her of having sex in her classroom?

Anyway, Politico reports that the entire judgment may unravel because the plaintiff’s lawyers inadvertenly named the wrong defendant in the lawsuit.

The Palm Beach Post News is reporting that the jury in Piendle v. RJ Reynolds (see previous post) has awarded $270,000 in punitive damages to go along with $2.2 million in compensatory damages. The defendants say they will appeal, but they have to be at least a little happy they didn’t get whacked with an eight-digit or nine-digit punitive damages award, like those issued recently to other Florida smokers and their families.

Related posts:

Another Punitive Damages Award in Florida Tobacco Litigation

Florida Jury Awards $20 Million in Punitive Damages to Smoker’s Widow

Smoker’s Widow Wins $12.5 Million in Punitive Damages

Florida Trial Judge Cuts $244 Million Punitive Damages Award

Florida Jury Awards $25 Million in Punitive Damages to Smoker’s Widow

“Smokers, tobacco, both winners in early Engle cases”

Jury Rules For Plaintiff in First Phase of Retrial After Reversal of $145 Billion Punitive Damages Award

After Reversal of $145 Billion Class Action Punitive Damages Award, Florida Smokers Seek Punitive Damages in Individual Suits

Plaintiffs’ Attorneys Win $218 Million Fee Award for Helping Obtain a Punitive Damages Verdict that Was Reversed on Appeal

The Courtroom View Network is providing a live “webcast” of the punitive damages phase of Piendle v. R.J. Reynolds, one of the many post-Engle lawsuits being pursued by Florida smokers and their families against tobacco companies. The “webcast” is text-only (no video); it’s essentially a live blog of the trial.

Related posts:

Another Punitive Damages Award in Florida Tobacco Litigation

Florida Jury Awards $20 Million in Punitive Damages to Smoker’s Widow

Smoker’s Widow Wins $12.5 Million in Punitive Damages

Florida Trial Judge Cuts $244 Million Punitive Damages Award

Florida Jury Awards $25 Million in Punitive Damages to Smoker’s Widow

“Smokers, tobacco, both winners in early Engle cases”

Jury Rules For Plaintiff in First Phase of Retrial After Reversal of $145 Billion Punitive Damages Award

After Reversal of $145 Billion Class Action Punitive Damages Award, Florida Smokers Seek Punitive Damages in Individual Suits

Plaintiffs’ Attorneys Win $218 Million Fee Award for Helping Obtain a Punitive Damages Verdict that Was Reversed on Appeal

UPDATE: (8/19/10): CVN has informed me that they have full video of the trial available to subscribers.