We haven’t seen many media reports of big punitive damages awards lately, in California or elsewhere. But here’s a report from the Associated Press (via the Columbia Daily Tribune) that a jury in Arkansas has awarded $5.9 million in compensatory damages and $42 million in punitive damages against Bayer CropScience. The plaintiffs, a dozen farmers, alleged that Bayer allowed genetically modified herbicide-resistant rice into the American rice market, causing some nations to ban American rice, which thereby depressed prices.
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McDonald’s Settles Case Involving Punitive Damages for Strip Search
Last year we posted about a case in which McDonald’s was hit for punitive damages because a prank caller supposedly tricked a McDonald’s store manager into performing a strip search on a store employee. Actually, the manager asked her boyfriend, who was not even a store employer, to perform a body cavity search. He ended up sexually abusing the employee in the process.
Amazingly, the Kentucky Court of Appeals ordered McDonald’s to pay $1 million in punitive damages to the manager who authorized the body cavity search, plus another $5 million to the victim of the strip search. The Courier-Journal of Louisville, Kentucky is now reporting that McDonald’s has settled the case for an undisclosed amount.
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West Virginia Supreme Court Reduces $196.2 Million Punitive Damages Award to $98 Million
The West Virginia Supreme Court has issued its opinion in a pollution/medical monitoring case involving a $400 million verdict against DuPont, including $196.2 million in punitive damages. The case had generated a lot of attention, not only because it was the fifth largest punitive damages award in the country in 2005, but also because the governor of West Virginia filed an amicus brief supporting DuPont’s petition for review to the West Virginia Supreme Court.
The opinion remands the case for further proceedings to determine whether the this entire class action should be dismissed on
punitive damagesstatute of limitations grounds. It also holds that, even if the plaintiffs’ claims are not barred the statute of limitations, the punitive damages should be reduced because (1) they were based in part on medical monitoring damages, which shouldn’t be used to calculate punitive damages because punitive damages can only be based on “actual harm,” and (2) DuPont should be credited for $20 million it already paid for cleanup expenses.Hat tip: West Virginia Citizens Against Lawsuit Abuse
Related posts:
West Virginia Supreme Court Agrees to Review $196.2 Million Punitive Damages Award Against Dupont
W. Va. Supreme Court Candidates Support Appellate Review of Punitive Damages
West Virginia Gov. Defends His Amicus Brief in Punitive Damages Case
West Virginia Governor Draws Fire for Intervening in Punitive Damages Case
Does West Virginia’s Lack of a Right to Appeal a Punitive Damages Award Violate Due Process?
DuPont Asks West Virginia Supreme Court to Review $196.2 Million Punitive Damages Award
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A Curious Punitive Damages Opinion from Florida
Florida has been making a lot of punitive damages news lately. In addition to the series of big punitive awards being handed out to smokers and their heirs, Florida’s intermediate appellate court issued an interesting (and in my mind, questionable) opinion this week in Lawnwood Medical Center v. Sadow.
In Lawnwood, the jury awarded nominal tort damages against a hospital for slandering a doctor, and then added $5 million in punitive damages. The hospital appealed the award as excessive under the Florida law and the Due Process Clause of the federal constitution.
The District Court of Appeal (Fourth District) analyzed the U.S. Supreme Court’s decisions in BMW v. Gore and State Farm v. Campbell, noted the ratio-based analysis in those cases, but suggested that those decisions might only apply to the specific types of misconduct involved, and not to cases involving malice. The court then suggested that cases involving malice are perhaps governed by the U.S. Supreme Court’s earlier decision in TXO v. Alliance, which the Florida court viewed as imposing no ratio limits on punitive damages imposed for malicious conduct.
Obviously I am influenced by my perspective as a defense lawyer, but I think the court’s analysis is deeply flawed. Nothing in BMW and Campbell suggest that the Supreme Court’s three-guidepost test is inapplicable to cases involving malice. To the contrary, Campbell expressly contemplated that the test would be applied to cases involving malice. Campbell instructs lower courts to consider a variety of factors when analyzing the reprehensibility of the defendant’s conduct (the first “guidepost”), including whether the defendant acted with malice. That wouldn’t make much sense if the whole analysis is inapplicable to malice cases. Campbell suggested that in some situations involving extreme reprehensibility and small compensatory damages, ratios in excess of single digits might be permissible. But the court did not suggest that ratio limitations are simply inapplicable in such cases. Such an exception would dramatically undermine the BMW/Campbell analysis, given that malice is perhaps the most frequent basis for imposing punitive damages under state law.
Fortunately, the Florida court in Lawnwood stopped short of actually holding that BMW and Campbell are inapplicable to malice cases. Instead, the court certified the following question to the Florida Supreme Court:
Are punitive damages of $5,000,000 arbitrary or excessive under the Federal Constitution where the jury awarded no compensation beyond presumed nominal damages but found that defendant intentionally and maliciously harmed plaintiff by slanders per se?
Stay tuned to see what the Florida Supreme Court does with this issue.
Hat tip: Florida Legal Blog
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Florida Jury Awards $20 Million in Punitive Damages to Smoker’s Widow
The Associated Press is reporting yet another punitive damages award in the Florida tobacco litigation: $20 million in punitive damages and $6.6 in compensatory damages. $25 million here, $12.5 million there, pretty soon it will add up to some real money.
Related posts:
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
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Pennsylvania Jury Awards $95 Million in Punitive Damages Against Mass Murderer
According to this press release on New York Injury News, a jury in Pennsylvania has awarded $95 million in punitive damages against a former nurse who admitted to killing 29 people and attempting to kill six more by administering lethal doses of drugs. It would be awfully difficult to argue against a big punitive damages award in a case like that. Unfortunately for the plaintiffs, the defendant has no assets, so they’re not likely to see a penny of this award. Unless, of course, the defendant writes a book about his experiences, but a killer would never do something like that, right?
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Survey Ranks California’s Litigation Climate Among Worst in the Nation, Again.
We’re 46th! According to this survey conducted by the US Chamber of Commerce’s Institute for Litigation Reform, California’s litigation climate ranks 46th in the nation in the eyes of corporate counsel and executives. That’s down from 44th in 2008, the last time the survey was conducted. The same survey lists Los Angeles County as the second worst venue in the nation. Unlike the 2008 survey, this year’s survey does not include a separate ranking for each state on the issue of punitive damages.
Hat tip: CJAC
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Federal Judge Tosses $100 Million Punitive Damages Award Against BP
In December of last year we reported on a jury’s award of $100 million in punitive damages to ten workers who claimed they were exposed to toxic fumes at a BP plant in Galveston. We noted that the award was not likely to hold up because of the absurdly high ratio of punitive damages to compensatory damages.
As it turns out, we were correct that the award wouldn’t hold up, but the ratio issue never came into play. The Associated Press is reporting that the trial judge (U.S. District Judge Kenneth M. Hoyt) has ruled that the plaintiffs are not entitled to any punitive damages in this case. According to the story, Judge Hoyt has issued a posttrial ruling stating that the plaintiffs failed to present clear and convincing evidence that BP acted with intent to harm or engaged in gross negligence, and plaintiffs are therefore entitled to no punitive damages.
I have no evidence to back this up, but my sense is that judges are more inclined to do this sort of thing (toss out a punitive damages award altogether) when the amount of the award is obviously excessive. Thus, even if they don’t reach the issue of excessiveness, they are influenced by the size of the award. Maybe it’s just because an obviously excessive award is a clear indication that something went awry during the jury’s deliberative process.
UPDATE: California appellate specialist Donna Bader has posted some commentary about this story on her Appeal to Reason Blog. She writes:
Some will celebrate this reduction as a victory for companies. Those
who do so may believe that individual plaintiffs should not be entitled to
punitive damages at all or that the award just seems like a lot of money. Others
will despair, as this case is just one of many where judges have reduced
punitive damages – ignoring the jury’s verdict – until they do nothing to punish
wrongdoers. As stated by plaintiff’s attorney, the decision gives BP a “free pass” to
continue hurting its workers.Personally, I don’t see this case a victory for companies. Nor do I see it as a cause for despair because a trial judge has ignored a jury’s verdict. Instead, I presume that the judge honestly concluded that the plaintiffs in this particular case had failed to introduce evidence to satisfy the legal standard for imposing punitive damages. That type of post-verdict review is an integral part of our justice system; trial and appellate judges are not supposed to reflexively accept any result reached by a jury, even if that result is unsupported by the evidence. In particular, judicial review of punitive damages awards has existed as a safeguard for as long as punitive damages have been awarded. (See, e.g., Huckle v. Money (C.P. 1763) 2 Wils. 205, 95 Eng. Rep. 768.) Sometimes that review works in favor of a defendant (corporate or otherwise), and sometimes it doesn’t.
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L.A. Times Story Mangles the Facts on Punitive Damages
This L.A. Times story (“Toyota Just the Latest Automaker To Face Auto Safety Litigation“) is not really about punitive damages. But it does touch on the topic, and in the process it gets the facts all wrong.
The author of the story argues that products defect litigation has made cars safer. As an example of a case that spurred safety innovations, the story reports that in the 1975 case Grimshaw v. Ford Motor Co., “a California appeals court ordered the carmaker to pay $125 million in punitive damages to the victims of one of the Ford Pinto’s fiery explosions.”
Umm, no. The Court of Appeal ordered Ford to pay $3.5 million in punitive damages, not $125 million. The jury awarded $125 million in punitive damages, but the trial court reduced that amount to $3.5 million (by ordering a conditional new trial subject to a remittitur), and the Court of Appeal affirmed that ruling.
The story comes a little closer to the truth when it says a couple of sentences later that “[t]he award was reduced to $3.5 million in a post-verdict negotiation . . . .” But that’s not right either. As noted, the punitive damages award was reduced to $3.5 million by the trial court, not as a result of a post-verdict negotiation. The post-verdict negotiations reduced the compensatory damages award from $3.5 million to a little over $3 million (see footnote 1 in the opinion), but the parties did not agree to a reduction of the punitive damages. If the parties had agreed to a post-verdict of reduction of punitive damages, there wouldn’t have been an appeal on the punitive damages, and so the Court of Appeal couldn’t possibly have ordered Ford to pay the full amount of the jury’s award, as the story reports. In short, the article is not only wrong on the facts, but it reports facts that are just plain nonsensical.
As I said, the Times article isn’t really about punitive damages, so perhaps I’m being unfair by zeroing in on that part of the article for criticism. But in my view, this article is an example of a recurring pattern; when reporters in the mainstream media start talking about punitive damages, they often mangle the facts.
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Smoker’s Widow Wins $12.5 Million in Punitive Damages
The Gainesville Sun reports that a jury has awarded $12.5 million in punitive damages (on top of $5 million in compensatory damages) against RJ Reynolds in the latest installment of the ongoing series of lawsuits by Florida smokers.
Related posts:
Florida Trial Judge Cuts $244 Million Punitive Damages Award
Florida Jury Awards $25 Million in Punitive Damages to Smoker’s Widow