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.

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.