A former University of Alabama booster got a $3 million punitive damage award in his lawsuit against the NCAA after being called a “rogue booster” in association with an investigation over NCAA recruiting violations.

A recent report from the National Law Journal shows that in 2007, three of the top seven highest jury awards in the nation were from West Virginia. At number three, the January verdict for $404 million ($270 million in punitive damages) in the Tawney vs. Columbia Natural Resources case in Roane County; at number five, the October verdict of $251 million ($196.2 million in punitive damages) in the Perrine vs. DuPont case in Harrison County; and at number seven, the July verdict of $219 million in the Wheeling Pitt vs. Central West Virginia Energy case in Brooke County.

In a case arising out of a partnership dispute, the Court of Appeal issued an unpublished opinion yesterday that’s not earth shattering, but prompts a note about the scope of second-phase evidence in a bifurcated punitive trial. The jury in this case awarded two attorneys about $4.5 million and $4 million respectively in compensatory damages against their former law partner. And, after finding malice, oppression or fraud, the jury heard evidence from the defendants in the “amount” phase of trial concerning their claimed good faith actions, but still awarded punitive damages totalling almost $2 million.

While the propriety of introducing mitigation evidence during the amount phase of trial was not apparently directly at issue in the case, the court’s discussion of defendant’s challenge to the sufficiency of evidence to support punitive liability suggests there’s nothing suspect about such a procedure (even if it may not always be tactically advisable). The court explained that the mitigation evidence “was not revealed to the jury when it was asked to decide whether appellants had engaged in conduct tantamount to oppression, fraud or malice. . . . Appellants may not assert that the jury failed to consider evidence they chose not to present to nullify its conclusion.” What’s somewhat interesting about this is that we’ve heard arguments by some counsel in other cases that no evidence may be introduced during the second phase of a bifurcated punitive trial aside from information about the defendant’s financial condition, which seems plainly wrong if the jury’s task is to evaluate reprehensibility – anything relevant to that specific task should, presumably, come in from either side.

One last aside—whatever one might think of California’s rules allowing “unpublished” opinions, this case provides an example of an opinion that seems to have been written without any intent to provide guidance to litigants other than the parties before the court. Responding to the defendant’s challenge that no evidence supported punitive liability (i.e., that there was no evidence of conduct that harmed the plaintiffs and was undertaken with malice, oppression or fraud), the court offered this rather unsatisfying description: “The record amply supports the jury’s findings and trial court’s conclusion that appellants engaged in conduct warranting imposition of punitive damages. Specifically, in denying appellants’ motion for judgment notwithstanding the verdict, the trial court noted that substantial evidence permitted the jury to find ‘the partnership was never concluded properly,’ and Hodge ‘motivated by . . . any one of the factors that are taken into consideration for punitive damages, took advantage of the situation for his own benefit,” in “a conscious, deliberative manner.’”

This story today on CNNMoney.com reports that a West Virginia trial judge has denied DuPont’s new trial motion in a class-action pollution case involving a $196.2 million punitive damages award. The way things have been going in West Virginia for corporate defendants in punitive damages cases, DuPont is unlikely to obtain any relief from the appellate courts.

UPDATE (2/26/08 at 1:52): DuPont plans to appeal. No surprise there.

The state of Alabama won a huge $175 million punitive damages award today against AstraZeneca, the maker of Nexium and Crestor. A jury found that AstraZeneca had overcharged Alabama’s Medicaid agency. Alabama was once famous for its punitive damages awards, especially the awards that led to the U.S. Supreme Court decisions in Pacific Mutual v. Haslip and BMW v. Gore. After the high-profile reversal in BMW, however, Alabama’s appellate courts have reined in the big awards. Earlier this year the Alabama Supreme Court vacated a $3.5 billion punitive damages award against Exxon Mobil. We’ll see what Alabama’s courts do with this one.

UPDATE (by Curt Cutting on 2/21/08 at 7:39): AstraZeneca has issued a statement, which you can find here. (Scroll down.) You probably won’t believe this, but they plan to appeal.

The New York Law Journal discusses an opinion by the New York Court of Appeals involving the allowance of consequential damages in breach of contract actions involving insurance policies. According to the article, “The Court of Appeals’ determination Tuesday that commercial property owners can assert a claim for consequential damages against insurers that breached their policies prompted a sharp disagreement among the judges. Five agreed in a ruling by Judge Eugene F. Pigott Jr. that commercial insurance consumers should be entitled to recover damages more than the stated value of their policies if those damages are the ‘natural and probable consequence’ of a breach of contract. But Judges Robert S. Smith and Susan Phillips Read, in a dissent written by Smith, accused their colleagues of legitimizing hitherto prohibited punitive damages in breach-of-contract claims by renaming them ‘consequential’ damages. The dissenters predicted on Tuesday that the ‘bad policy choice’ will come at ‘too great a cost’ to the insurance system in New York. ‘Insurers will fear that juries will view even legitimate claim denials unsympathetically, and that insurers will thus be exposed to damages without any predictable limit,’ Smith wrote. ‘This fear will inevitably lead insurers to increase their premiums — and so will inflect a burden on every New Yorker who buys insurance.’”

According to this Forbes article, a Nevada trial court has reduced a jury’s $99 million punitive damages award against Wyeth down to $35 million. The court also reduced the compensatory damages from $35 million to $23 million. The resulting $58 million judgment is still the largest personal injury award in Nevada history, according to the article.

The case involves Wyeth’s hormone replacement drugs, Premarin and Prempro. The plaintiffs claim they developed breast cancer as a result of those drugs.

On February 15, the Texas Supreme Court issued an opinion deciding the following certified question from the Fifth Circuit: “Does Texas public policy prohibit a liability insurance provider from indemnifying an award for punitive damages imposed on its insured because of gross negligence?” The court answered that question in the negative. That puts Texas law at odds with California law, which provides that punitive damages are not insurable.

According to this Associated Press article issued today, President Bush is asking Congress to pass legislation aimed at reducing Medicare’s drain on the general treasury. The article says Bush’s proposal would impose limits on non-economic and punitive damages awarded in medical malpractice cases.

When he was a practicing lawyer, Senator Obama successfully defended an arbitration award of punitive damages in the Seventh Circuit. According to the Sun Times, “In 1994, Obama went before the 7th Circuit to defend Ahmad Baravati, a trader blackballed by his bosses after he reported them for fraud. An arbitrator awarded Baravati $60,000 in damages plus $120,000 in punitive damages against the former bosses. They appealed, saying arbitrators don’t have the power to award punitive damages. Obama had a tough job because the same court had ruled a week earlier that an arbitrator could not award punitive damages. But Obama convinced them this case was different. ‘You’re suggesting that there’s a federal common law that likes punitive damages, but this could be preempted by a state law that says ‘no punitive damages,’ Posner told Obama. ‘I don’t think I’m saying there’s a federal law that ‘likes punitive damages,’ Obama responded, not dropping his tone of respect. ‘I think what I’m saying is that there’s a federal law that likes the notion that the same remedies that will be available in court will be available in arbitration.’ Obama won, and Baravati got to keep the extra $120,000. He still is grateful. ‘I found he’s a very smart, innovative, skilled, relentless advocate for his client,’ Baravati said. ‘When I met him, he reminded me of Abraham Lincoln.’”