The New York State Court of Appeals issued an opinion today reversing a $20.5 million judgment against Brown & Williamson and Philip Morris. The judgment included $17.1 in punitive damages.

The plaintiffs claimed that the defendants’ cigarettes were defectively designed because they should have contained lower levels of tar and nicotine. The Court of Appeals found that the plaintiffs failed to prove an element of their case:

We agree with the Appellate Division that plaintiffs failed to prove an essential element of their case: that regular cigarettes and “light” cigarettes have the same “utility.” The only “utility” of a cigarette is to gratify smokers’ desires for a certain experience, and plaintiffs did not prove, or try to prove, that light cigarettes perform this function as well as regular cigarettes.

This opinion comes on the heels of a decision earlier today reversing a $20 million punitive damages award against Brown & Williamson in Missouri.

The Kansas City Business Journal reports that the Missouri Court of Appeals has reversed a $20 million punitive damages award against Brown & Williamson Tobacco Corp. Click here to view the opinion. The plaintiffs, family members of a deceased smoker, brought a wrongful death action under Missouri law and obtained a jury award of $500,000 in compensatory damages and $20 million in punitive damages, a ratio of 40 to 1. The Court of Appeal reversed, ordering a new trial on punitive damages, on the ground that only one of the plaintiffs’ three liability theories was supported by substantial evidence. (Note: in California, punitive damages are not permitted at all in wrongful death actions.)

This case comes on the heels of yesterday’s much less favorable decision for the tobacco industry in Altria Group Inc. v. Good, in which the U.S. Supreme Court ruled that federal law does not preempt suits by smokers who claimed they were mislead about the dangers of “light” cigarettes. As reported by Bloomberg, the ruling paves the way for smokers in various states to proceed with lawsuits seeking punitive damages.

Yesterday we blogged about a radiologist’s request for $1 billion in punitive damages. The Associated Press reports (via the San Francisco Chronicle) that the jury awarded $7.5 million in punitive damages, on top of $3.9 in compensatory damages already awarded.

While the plaintiffs’ attorney may be disappointed that he didn’t get the $1 billion, this two-to-one ratio will be easier to defend on appeal. Nevertheless, given the size of the award, I would expect Kaiser to appeal and argue that its conduct did not warrant punitive damages and/or that the punitive damages award is excessive in light of the already substantial compensatory damages award. Given the recent trend of California courts reducing punitive damages awards to a one-to-one ratio when compensatory damages are substantial, Kaiser might be able to shave $3.6 million off the award, if nothing else.

Update: For those who want to track this case on the Los Angeles County Superior Court’s website, the case number is BC365398. A hearing on post-trial motions is set for March 11, 2009.

The Los Angeles Independent reports that plaintiffs’ attorney Charles T. Mathews has asked a jury to award $1 billion in punitive damages against Kaiser Foundation Health Plan and Southern California Permanente Medical Group. The defendants are accused of trying to silence the plaintiff, a radiologist, who complained about the performance of staff at the Kaiser Sunset hospital in Hollywood. The jury has already ruled for the plaintiff on the issue of liability and awarded $3.9 million in compensatory damages.

If the jury accepted the invitation to award $1 billion in punitive damages, that award would be roughly 260 times the compensatory damages (and possibly higher if the compensatory damages will be further reduced based on an allocation of fault). Savvy plaintiffs’ lawyers generally don’t invite juries to award ratios like this, because a ratio that high would be closely scrutinized on appeal and would almost certainly be reversed. By contrast, a modest punitive damages award in the low single-digit range would not draw the same sort of immediate skepticism from appellate justices.

Law.com has a story today about a Florida medical malpractice case in which the trial court has allowed the plaintiff to seek punitive damages. The overall theme of the story is that the ruling is a major breakthrough because punitive damages are rarely allowed in med mal cases. The plaintiff’s lawyer, Spencer Aronfeld, says he has been contacted by lawyers across the country about this case and has been asked to speak about how to get punitive damages in med mal cases.

The blog Litigation and Trial takes issue with the Law.com story. Pennsylvania attorney Maxwell Kennerly writes that the Law.com story greatly overstates the significance of the Florida ruling. He notes that the Mr. Aronfeld has achieved nothing more than crossing the first procedural hurdle to obtaining punitive damages, and has not actually obtained a punitive damages award from the jury, much less defended that award against posttrial motions and appeal.

I agree with the Law.com article to the extent it suggests that punitive damages are rarely awarded in med mal cases. That seems to be true based on my California experience anyway. I think there are two reasons for that. First, California med mal plaintiffs must demonstrate a substantial likelihood of success before they can even allege a claim for punitive damages. (See Cal. Code Civ. Proc. section 425.13(a).) Second, it is extremely difficult in most medical malpractice cases for a plaintiff to convince the jury that a doctor’s conduct was not merely negligent, but was so despicable as to warrant punitive damages. But as rare as punitive damages awards may be in medical malpractice cases, they are not entirely unheard of, and I agree with Mr. Kennerly that it seems a bit premature for Mr. Aronfeld to be crowing about his victory at this stage in the proceedings. He has a lot more hurdles to cross before he and his client actually pocket any punitive damages.

Hat tip: TortsProf blog.

This post on Indybay criticizes the San Francisco Chronicle for inaccuracies in its story on a $5.5 million punitive damages award against an Oakland landlord. As we noted in our post about this case, the Chronicle reported that the plaintiffs’ attorney would ask the trial judge to award the punitive damages to a charity instead of the plaintiffs. According to the Indybay post, however, the plaintiffs’ attorney says the Chronicle got it all wrong, and she does not intend to donate the entire award to charity – – only the amounts that can’t be distributed because some of the plaintiffs can’t be located:

“The Chronicle article got it wrong when it suggested that I want housing organizations to get the full $5.5 million jury award, rather than the tenants,” said Laura Stevens. “They got it all wrong! It may take up to two years to wrap up this case if Thomas appeals the jury decision, and we are not sure where all of Thomas’ ex-tenants currently reside. If there’s any of the settlement left over after the tenants get their share, it’s customary to pass along the rest to housing organizations.

The Missouri Court of Appeals has issued a remarkable opinion allowing $3.75 million in punitive damages in a sexual harassment case in which the compensatory damages were only $50,000.

The jury in this case awarded $6.75 million in punitive damages against auto parts supplier TNT Logistics of North America. The trial judge reduced the amount to $450,000.

TNT argued on appeal that even $450,000 was too much and that the plaintiff deserved no more than $250,000. The Court of Appeals said $6.75 million was excessive but that $450,000 was insufficient.

The Court of Appeals determined that TNT should pay $3.75 million in punitive damages because the extremely reprehensible conduct of the defendant warranted a departure from a single-digit ratio. But the court did not discuss or analyze any of the reprehensibility factors set forth in State Farm v. Campbell, such as whether the conduct involved physical harm, whether the defendant was a repeat offender, or whether the defendant took advantage of the plaintiff’s financial vulnerability. Most of those factors appeared not to be present in the case. It is hard to fathom how the court could conclude that a 75-to-1 ratio passes muster under Campbell.

Another curious aspect of the case is that the Court of Appeals gave the plaintiff a choice between accepting the $3.75 million or opting for a new trial. If $3.75 million is the constitutional maximum, what would be the point of affording the plaintiff a new trial? Any award higher than $3.75 million would be excessive, so the plaintiff could not possibly hope to do better at the retrial.

We have previously posted here on a candidate forum in the West Virginia Supreme Court race where two candidates promised they would always vote to review punitive damage awards.

As readers of this blog are aware, West Virginia is one of the few states without an automatic right of appeal, which has left defendants no remedy after being hit with significant punitive damage awards. Prior posts are here and here. One of the candidates who made that promise was democrat Menis Ketchum who said in response to a question at a candidate’s forum that “he would agree to hear any case involving punitive damages ‘no matter how large or how small.’”

Ketchum recently won his election to the West Virginia Supreme Court in large part because of a clever series of advertisements where he played off the similarity of his name with the famous condiment. The first advertisement was set in the popular Jim’s Steak and Spaghetti House in Huntington. A man and woman sit at a lunch counter while a waitress serves them. The advertisement begins: “‘What do you know about this Ketchup guy running for the Supreme Court?’ begins the man. ‘Not Ketchup. Ketchum. Menis Ketchum,’ corrects the waitress. The woman sitting at the counter points to a newspaper and says: ‘It says here Menis Ketchum has been in the courtroom for 40 years. He’s a no-nonsense straight shooter and he can’t be bought.’” Apparently, this series of ketchup ads was instrumental in securing new Justice Ketchum’s election.

The other candidate to make the pledge to review all punitive damage awards, democrat Margaret Workman, also won election. Interestingly, the losing Republican candidate opposed automatic review for all punitive damage awards unless called for by the Legislature.

This goes to show that the oddest things can have an impact on punitive damages jurisprudence. It also goes to show that party labels on some issues like punitive damages may not tell you everything about a candidate’s views.

UPDATE (by Curt Cutting): According to the website of the California state bar, there are 6 licensed attorneys in California named “Ketchum.” If any of them wants to run for a spot on the bench, they should take a page from Justice Ketchum’s playbook. The 30 licensed attorneys named “Mayo” also may want to take this into consideration.

The San Francisco Chronicle is reporting that a jury in Oakland has awarded $183,000 in compensatory damages and $5.5 million in punitive damages against a landlord who allegedly defrauded tenants out of security deposits. Interestingly, the story quotes the plaintiffs’ attorney as conceding that the punitive damages are excessive and should be reduced by the trial judge. The lawyer also says that, after the punitive damages are reduced, she will ask the judge to award the reduced amount to charity, instead of her clients.

We previously blogged about a $404 million judgment in West Virginia against two energy companies, NiSource and Chesapeake Energy. The judgment, which included a $270 million punitive damages award, was based on the defendants’ failure to make royalty payments to property owners who had leased natural gas rights to the defendants.

Today, the Northwest Indiana and Illinois Times is reporting that NiSource has agreed to settle the case for $338.8 million. Co-defendant Chesapeake Energy is chipping in another $41.2 million.

The West Virginia Supreme Court’s refusal to even consider this case raised questions about the constitutionality of West Virginia’s post-verdict review of punitive damages, and NiSource filed a petition for certiorari with the U.S. Supreme Court. Those issues will have to wait for another day.