Judge William Alsup of the Northern District of California issued an order yesterday denying the NFL Player’s Association’s post-trial motions in a case in which a jury awarded $7.1 million in compensatory damages and $21 million in punitive damages. The plaintiffs in this case are retired players who alleged that the union failed to properly market their images, and that the union cut them out of licensing deals so that active players could receive bigger royalty payments. The Players Association says it will appeal to the Ninth Circuit.

Hat tip: Retired Players.org

Margaret Cronin Fisk has a story on Bloomberg.com entitled Billion-Dollar U.S. Verdicts Vanish After Appeals, New Rulings, reporting on data compiled by Bloomberg about the largest civil jury verdicts in the U.S. in 2008. The story reports, among other things, that no jury verdicts topped $1 billion in 2008. That makes two of the last three years with no billion-plus verdicts.

More directly relevant to this blog, the top ten punitive awards in 2008 totaled $960 million, which is nothing to sneeze at, but still down 30 percent from 2007 and 63 percent from 2006. If this trend continues, perhaps we will look back on 2006 as the zenith (or nadir, depending on your point of view) of the megabucks punitive damages award.

The Barre Montpelier Times Argus is reporting that a jury was awarded $192,500 in compensatory damages and $3.4 million in punitive damages to a plaintiff who was molested by a priest in 1977, when the plaintiff was an 11-year-old altar boy. That’s a ratio of nearly 18-to-1. If ever there were a case in which the extremely despicable nature of the conduct justifies a ratio beyond the single-digit range, this appears to be it. This is the second major punitive damages award of the year against the Roman Catholic Diocese of Vermont, which is appealing a $8.7 million verdict awarded in May. The same priest was involved in both cases, and is involved in 19 more pending cases. According to the Argus story, the diocese has dismissed the priest from the diocese but has not stripped him of his priesthood.

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.