Judge James Ware of the Northern District of California has issued a posttrial order vacating $5.2 million in punitive damages against TASER International.

The jury’s award of punitive damages in this case made headlines because it was the first time TASER had lost a products liability suit. The suit was brought by the heirs of a man who died after police in Salinas, California shot him multiple times with a stun-gun manufactured by TASER. TASER maintained that the death occurred because the victim was high on crank. The jury assigned 85 percent fault to the decedent, but they nevertheless awarded $5.2 million in punitive damages to his estate and his heirs.

Judge Ware vacated the award of $200,000 to the estate because the jury made a special finding that TASER neither knew that it was creating a risk of harm nor consciously disregarded a scientifically knowable risk. Accordingly, there was no finding on which a jury could legally base an award of punitive damages. Judge Ware vacated the award to the heirs under California Code of Civil Procedure section 377.61, which prohibits the recovery of punitive damages in wrongful death actions. It is unclear from the court’s order why the jury verdict form even allowed the jury to award such damages, but apparently plaintiffs’ counsel conceded that “he saw the inconsistency in the verdict form when it was presented to him for review prior to closing argument,” but did not call it to the court’s attention. (See p. 13 of the order.)

TASER issued a press release about the ruling.

Steve Mayer at Howard Rice in San Francisco has launched a new blog, the California Constitution, discussing law and politics related to the California Constitution. Steve knows his stuff: he is a well-respected appellate lawyer specializing in representing public entities and cases concerning the initiative process. Welcome to the blogosphere, Steve!

We’ve been blogging quite a bit about a West Virginia lawsuit against DuPont that resulted in a $400 million judgment, including $196.2 million in punitive damages. The case has generated quite a few headlines, culminating in last week’s decision by the West Virginia Supreme Court to review the case on its merits.

Now the West Virginia Record is reporting that the plaintiffs’ firms have given a combined $14,000 to two West Virginia Supreme Court justices who are seeking reelection. (A defense firm also donated $1,000 to one of the same justices.) As the story points out, one of the same plaintiffs’ lawyers has publicly complained that DuPont unfairly influenced the judicial process by lobbying West Virginia’s governor to file an amicus brief in the case. And that lawyer (whose office is in Florida, not West Virginia) has also complained about the unfair influence of the Chamber of Commerce in West Virginia.

Whenever I read about lawyers in other states donating large sums of money to the political campaigns of appellate justices, and then appearing before those same justices in high-stakes cases, I’m thankful that California’s appellate justices don’t have to run in contested elections.

BNA is holding an audioconference on October 15 entitled “The New Course of Punitive Damages After Philip Morris and Exxon Shipping.” The program will run from 1:00 to 2:30 PM ET, and will cover the following topics:

• Examination of what the 2007 decision in Philip Morris USA v. Williams means and how that issue has played out in the courts since the decision.
• Review of what Exxon Shipping Co. v. Baker decided and its implications beyond maritime cases.
• How the U.S. Supreme Court views empirical studies cited in briefs.
• What is at issue in the return of the Philip Morris case to the U.S. Supreme Court?
• What might be the next punitive damage issue the Court could confront?

The speakers will be Robert S. Peck, President of the Center of Constitutional Litigation, and Victor E. Schwartz of Shook, Hardy & Bacon LLP.

To register for the conference, click here.

Hat tip: TortsProf Blog.

We previously blogged here about the lawsuit by the estate of J.R.R. Tolkien against New Line Cinema which included a request for punitive damages. As reported here, the trial court has now rejected plaintiff’s request for punitive damages.

The Associated Press has an article today entitled “Damages Limit A Concern in the Wake of Train Crash” (via the LA Daily News). The article includes quotes from Brian Panish, a plaintiff’s attorney who is representing two of the crash victims in last week’s head-on collision between a Metrolink commuter train and a Union Pacific freight train in Los Angeles. (The article mistakenly refers to Panish as a defense attorney.) Panish intends to challenge the Amtrak Reform and Accountability Act of 1997, which places a $200 million limit on damages payouts in rail accident cases. The limit includes compensatory and punitive damages.

Of course, that’s assuming that punitive damages would even be available in such a case. In litigation over the 2002 crash between a Metrolink commuter train and a Burlington Northern freight train in Placentia, the superior court ruled the plaintiffs’ punitive damages claim was preempted by federal law. (Full disclosure: Horvitz & Levy consulted on the motion for summary adjudication that knocked out the punitive damages claim in the Placentia litigation. Panish’s firm represented some of the plaintiffs.)

Judge Garr M. King of the District of Oregon has issued a post-trial opinion reducing what was possibly the largest trademark infringement award ever. (See our prior posts here, here and here.) The jury awarded a total of $305 million, but the court chopped it down it down to a mere $65 million.

The jury had awarded $137 million under the Lanham Act for disgorgement of profits, but Judge King exercised his discretion under the Lanham Act to reduce that figure to $19.7 million.

As for the punitive damages award, Judge King denied Payless‘ motion for a new trial, conditioned on Adidas’ acceptance of a remittitur of the punitive damages award to $15 million. He determined that the $30.6 million awarded by the jury for lost royalties represented Adidas’ “actual harm,” for purposes of comparing the punitive damages to actual harm. He then went on to conclude that, given the low reprehensibility of the conduct at issue, even a 1 to 1 ratio of punitive damages to actual harm would be excessive:

After considering the Gore guideposts, I have decided that even a 1 to 1 ratio between compensatory and punitive damages is too high. The main reasons are that there was no physical harm or disregard for a person’s health or safety, there were no lost sales, Adidas suffered no economic harm that jeopardized its business in any way, and, even though Payless acted willfully, it did not do so for the entire period addressed here. I realize that going below a 1 to 1 ratio is unusual but such awards have been approved if there is only economic harm. See Motorola Credit Corp. v. Uzan, 509 F.3d 74 (2nd Cir. 2007) (following a court trial in a financial fraud case the trial court characterized as hard to imagine financial conduct more reprehensible,
the appellate court affirmed the trial court’s decision on remand to reduce the punitive damages to $1 billion from $2.1 billion, along with compensatory damages of $2.1 billion). After giving this much thought, I conclude that the punitive damages must be reduced to $15 million to comport with due process concerns. Accordingly, I deny Payless’ motion for a new trial, conditioned on Adidas accepting a remittitur of the punitive damages award to $15 million.

Hat tip: Seattle Trademark Lawyer.

The Charleston Gazette contains this article about candidates running for election to the West Virginia Supreme Court: “Two Supreme Court Hopefuls Support Automatic Review of Punitive Damages.”

Currently, defendants in West Virginia have no right to appellate review of punitive damages awards. All they can do is seek discretionary review by the West Virginia Supreme Court. As we observed in a prior post, the absence of a right to appeal raises due process questions.

The issue has been in the spotlight recently because the West Virginia Supreme Court declined to review a case involving $270 million in punitive damages and the Governor of West Virginia filed a controversial amicus brief asking the court to review a $196.2 million punitive damages award against DuPont.

According to the San Diego Union Tribune, a jury today awarded $15.2 million in compensatory damages and $40.4 million in punitive damages against San Diego Gas & Electric Company in a case involving a helicopter crash that killed four Marines.

In the 2004 crash, the Marines’ UH-1N (Huey) helicopter collided with a 130-foot utility tower located on Camp Pendleton. The plaintiffs claimed that SDG&E was negligent for not installing safety lights on the tower. SDG&E says the tower had been on the base for 25 years and they would have installed lights if the Marine Corps had asked. They contend the crash was the result of errors by the crew and they plan to appeal.

Please pardon this interruption from our usual punitive damages programming, but it’s for a good cause. You may not have heard, but September 2008 is national Hunger Action Month. From September 15 to September 30, our firm (Horvitz & Levy) is sponsoring a “Motion to Strike Hunger” food drive to benefit the Los Angeles Regional Food Bank, which provides food to over one million people in Los Angeles County who are struggling to feed their families.

We invite our Los Angeles area readers to join us by doing any of the following :

(1) signing up to hold a food drive at your firm or business from September 15 to September 30 (it’s very easy – – just sign up here and the food bank will deliver collection barrels and pick up the donations at the end of the food drive)

(2) scheduling your own volunteer day

and/or (3) making a cash donation.

The firm that donates the most pounds of food per capita will earn the title of “Most Generous Movant.” (This is an appeal to litigators who enjoy the thrill of competition but, of course, the good feeling of giving is its own reward.)