California Punitives by Horvitz & Levy

  • Philadelphia jury awards $8 billion in punitive damages in Risperdal retrial

    The BBC News reports that a jury in Philadelphia has awarded $8 billion in punitive damages against Johnson & Johnson in a lawsuit over the anti-psychotic drug Risperdal. 

    The plaintiff is a man who alleged that he grew breasts as a result of taking Risperdal and was not warned about that possible side effect.  A jury in 2015 awarded $1.75 million in compensatory damages, which the trial court later reduced to $680,000 and barred punitive damages.  The state appellate court reversed the ruling on punitive damages and sent the case back for a retrial on that issue. After this verdict, the case is undoubtedly heading back up on appeal again.

    Johnson & Johnson is no stranger to colossal punitive damages awards.  The company has been battered by a series of adverse jury verdicts in cases involving its pelvic mesh implants and talc products, not to mention a billion dollar verdict in a Texas case involving hip implants.  Oh, and it’s fighting a $572 million award by an Oklahoma judge who found the company responsible for that state’s opioid epidemic.

    The Wall Street Journal has an op-ed about the case entitled An $8 Billion Drug Heist.

  • Ninth Circuit vacates $7.9 million punitive damages award in dispute between Steinbeck heirs (Kaffaga v. Estate of Thomas Steinbeck)

    This published Ninth Circuit opinion holds that a $7.9 million punitive damages award must be vacated under California law because the plaintiff failed to introduce meaningful evidence of the defendant’s financial condition.

    This case arises out of decades of litigation between John Steinbeck’s heirs.  When Steinbeck died in 1968, he left his interests in his works to his third wife, Elaine.  He left $50,000 each to his two sons by previous marriages.  It seems that his sons were unhappy with that arrangement, resulting in decades of acrimonious litigation.

    The litigation ultimately culminated in this federal lawsuit by Waverly Kaffaga (the executrix of Elaine’s estate) against Gail Steinbeck (executrix of the estate Thomas Steinbeck, John’s son).  Kaffaga claimed that Gail had unreasonably asserted rights in John Steinbeck’s works, which caused multiple Holllywood producers to abandon negotiations with Kaffaga to develop screenplays for remakes of The Grapes of Wrath and East of Eden.

    A jury ruled in favor Kaffaga and awarded $5.25 million in compensatory damages for slander of title, breach of contract, and tortious interference with economic advantage, and $7.9 million in punitive damages.

    On appeal, the Ninth Circuit affirmed the judgment except for the punitive damages award.  As often happens with punitive damages appeals in California state court, the court held that the plaintiff had failed to introduce meaningful evidence of the defendant’s financial condition.  Kaffaga presented evidence that Gail had various television series and films in development, but introduced no evidence about the potential income from those projects.  Nor did Kaffaga present evidence from an expert accountant to examine Gail’s financial records to estimate her liabilities or net worth.

    The opinion mentions that at oral argument, Kaffaga’s counsel blamed Gail for the lack of evidence, arguing that she was uncooperative during discovery.  The Ninth Circuit rejected this contention because Kaffaga could not point to anything in the record showing that she moved to compel production of additional evidence, and because Kaffaga had not asked for a jury instruction seeking an adverse inference from Kaffaga’s alleged failure to disclose.

    The tone of the opinion strongly suggests that the court wants this opinion to be the last chapter in the Steinbeck litigation.  But the history of this litigation suggests that is unlikely.

  • $2 billion Roundup punitive damages reduced to $87 million

    This post is a bit tardy, but here’s a link to the July 26 L.A. Times story about a ruling that reduced the $2 billion Roundup punitive damages award to $87 million (and reduced the $55 million compensatory damages award to $17.3 million).

    Disclosure: as noted in previous posts, Horvitz & Levy represents Monsanto in Roundup litigation.

  • $2 billion Roundup punitive damages reduced to $87 million

    This post is a bit tardy, but here’s a link to the July 26 L.A. Times story about a ruling that reduced the $2 billion Roundup punitive damages award to $87 million (and reduced the $55 million compensatory damages award to $17.3 million).

    Disclosure: as noted in previous posts, Horvitz & Levy represents Monsanto in Roundup litigation.

  • Federal judge reduces Roundup punitive damages (Hardeman v. Monsanto)

    Law 360 reports that U.S.District Judge Vince Chhabria has reduced a $75 million punitive damages award to $20 million in a Roundup-based lawsuit against Monsanto.  The compensatory damages are roughly $5.2 million.

    [Disclosure: Horvitz & Levy represents Monsanto in Roundup litigation]

  • Federal judge reduces Roundup punitive damages (Hardeman v. Monsanto)

    Law 360 reports that U.S.District Judge Vince Chhabria has reduced a $75 million punitive damages award to $20 million in a Roundup-based lawsuit against Monsanto.  The compensatory damages are roughly $5.2 million.

    [Disclosure: Horvitz & Levy represents Monsanto in Roundup litigation]

  • Court of Appeal affirms order that vacated $340 million punitive damages award against Johnston & Johnson (Echeverria v. Johnson & Johnson)

    Two years ago a Los Angeles jury awarded $417 million, including $347 million in punitive damages, to a woman who claimed she developed ovarian cancer from talc in Johnson & Johnson’s Baby Powder.  The trial court tossed out the punitive damages award, finding that the plaintiffs presented no clear and convincing evidence of malice, fraud, or oppression.

    A few days ago, the Court of Appeal (Second District, Division Three) issued this published opinion affirming the trial court’s ruling on punitive damages.  It’s an important decision because it deals with a factual scenario that arises frequently in California punitive damages litigation.  The basic facts go something like this:

    A manufacturer sells a product at a time when someone has posited that an ingredient in the product may increase the risk of cancer, but the issue is a question of scientific debate.  The plaintiff uses the product and develops cancer, and seeks punitive damages from the manufacturer on theory that it consciously disregarded a possible risk to human health.

    The Court of Appeal explains that such evidence cannot support punitive damages, which must be based on a showing that the defendant was aware of probable dangerous consequences of its conduct.  For punitive damages purposes, it is not enough that someone somewhere identified a possible risk from the defendant’s product.  If the scientific community had not reached agreement on whether there was an actual risk, then the defendant did not act with malice by selling the product.

    So in this case, where the connection between talc and ovarian cancer remains under scientific investigation, the Court of Appeal said the jury could have reasonably concluded the defendant was negligent, but no reasonable jury could find by clear and convincing evidence that the defendant committed the sort of “despicable” conduct that warrants punitive damages.

    Significantly, the court explained that scientific studies issued after the plaintiff’s injury could not be used to prove the defendant’s state of mind before the product was sold.  “Scientific evidence developed post-injury did not create a reasonable inference that [the defendant] was acting with malice, pre-injury, in failing to warn of probable dangerous consequences of the product.”

    While it may seem obvious that studies released in 2013 cannot shed light on a defendant’s state of mind in the 1960s, California case law on this issue has been somewhat unclear.  This decision may help dispel some of that confusion.

  • Ventura County jury awards $10 million in punitive damages against Sriracha maker

    The LA Times reports that a jury awarded $13.3 million in compensatory damages and $10 million in punitive damages against Huy Fong Foods, Inc., the maker of Sriracha sauce. 

    The plaintiff is Underwood Ranches, who had supplied Huy Fong with jalapeno peppers.  Underwood claimed they suffered dramatic losses when Huy Fong abruptly terminated their contract.  The story doesn’t explain the basis for punitive damages, which ordinarily aren’t available in contract disputes.

  • Court of Appeal affirms order that vacated $340 million punitive damages award against Johnston & Johnson (Echeverria v. Johnson & Johnson)

    Two years ago a Los Angeles jury awarded $417 million, including $347 million in punitive damages, to a woman who claimed she developed ovarian cancer from talc in Johnson & Johnson’s Baby Powder.  The trial court tossed out the punitive damages award, finding that the plaintiffs presented no clear and convincing evidence of malice, fraud, or oppression.

    A few days ago, the Court of Appeal (Second District, Division Three) issued this published opinion affirming the trial court’s ruling on punitive damages.  It’s an important decision because it deals with a factual scenario that arises frequently in California punitive damages litigation.  The basic facts go something like this:

    A manufacturer sells a product at a time when someone has posited that an ingredient in the product may increase the risk of cancer, but the issue is a question of scientific debate.  The plaintiff uses the product and develops cancer, and seeks punitive damages from the manufacturer on theory that it consciously disregarded a possible risk to human health.

    The Court of Appeal explains that such evidence cannot support punitive damages, which must be based on a showing that the defendant was aware of probable dangerous consequences of its conduct.  For punitive damages purposes, it is not enough that someone somewhere identified a possible risk from the defendant’s product.  If the scientific community had not reached agreement on whether there was an actual risk, then the defendant did not act with malice by selling the product.

    So in this case, where the connection between talc and ovarian cancer remains under scientific investigation, the Court of Appeal said the jury could have reasonably concluded the defendant was negligent, but no reasonable jury could find by clear and convincing evidence that the defendant committed the sort of “despicable” conduct that warrants punitive damages.

    Significantly, the court explained that scientific studies issued after the plaintiff’s injury could not be used to prove the defendant’s state of mind before the product was sold.  “Scientific evidence developed post-injury did not create a reasonable inference that [the defendant] was acting with malice, pre-injury, in failing to warn of probable dangerous consequences of the product.”

    While it may seem obvious that studies released in 2013 cannot shed light on a defendant’s state of mind in the 1960s, California case law on this issue has been somewhat unclear.  This decision may help dispel some of that confusion.

  • Ventura County jury awards $10 million in punitive damages against Sriracha maker

    The LA Times reports that a jury awarded $13.3 million in compensatory damages and $10 million in punitive damages against Huy Fong Foods, Inc., the maker of Sriracha sauce.

    The plaintiff is Underwood Ranches, who had supplied Huy Fong with jalapeno peppers.  Underwood claimed they suffered dramatic losses when Huy Fong abruptly terminated their contract.  The story doesn’t explain the basis for punitive damages, which ordinarily aren’t available in contract disputes.