Law 360 reports that Florida’s First District Court of Appeal has ordered a new trial in a case in which a jury awarded $23.6 billion in punitive damages to the family of a smoker. (See our post about the verdict in 2014.) 

The Court of Appeal’s opinion holds that the plaintiffs’ counsel committed misconduct during closing arguments by making several improper arguments.  Counsel argued that RJR Reynolds acted wrongly by defending itself, and that it had employed a dishonest legal strategy.  The court observed that “the purpose of closing argument is to facilitate reasoned analysis of the facts and the evidence, not to denigrate the opposing party with outlandish conspiracy theories.”   The court observed that the misconduct was “clearly intended to stir the passions of the jury,” which apparently it did, judging by the size of the award.

Arkansas could soon join the ranks of states that place a ceiling on punitive damages.  This article from the Magnolia Reporter of Arkansas reports that the Arkansas Senate voted in favor of a resolution (SJR8) that will ask the voters of Arkansas whether to amend that state’s constitution to impose a cap on punitive damages.  The amendment would limit punitive damages to the greater of $250,000 or three times compensatory damages.

A few days ago, Law.com reported that a jury in federal district court in New Jersey has awarded $1.5 million in compensatory damages and $50 million in punitive damages in an age discrimination suit against Lockheed Martin. 

The article says the plaintiff bought claims under New Jersey state law and the federal Age Discrimination in Employment Act (ADEA).  The Fifth Circuit recently reaffirmed that the ADEA does not authorize punitive damages, so presumably the punitives were awarded under state law.  But even if New Jersey state law permits punitive damages for such claims, the award is not likely to survive post-trial review, given the 33-to-1 ratio between punitive and compensatory damages.

Insurance Journal reports that the Montana House voted last week 60-40 to further tighten that state’s legislative cap on punitive damages.  Under existing Montana law, punitive damages are capped at the lesser of $10 million or 3 percent of the defendant’s net worth.  The new law would add a further limitation, prohibiting punitive damages from exceeding three times the amount of compensatory damages.

Back in 2014, a Montana trial court found the current statutory cap unconstitutional. The parties appeared to have settled that dispute, because there was no appeal to the Montana Supreme Court.  That court had another case in 2014 that raised the issue of whether the cap is constitutional, but the court ended up vacating the punitive damages award on other grounds. 

In any event, California plaintiffs’ attorneys can rest easy.  California remains among the minority of states having no legislative limitation on the amount of punitive damages.

Texas Lawyer reports that a Dallas federal judge has cut last month’s $1.04 billion punitive damages award against Johnson & Johnson down to $540 million.  That ruling was expected, as we noted in our prior post about this case.  It is also no surprise that both sides are unhappy with that result, and both sides have vowed to appeal.

What is surprising, however, is that the plaintiffs have hired Ken Starr to defend the billion-dollar punitive damages award on appeal.  He has been an outspoken critic of punitive damages throughout his career.  In his days as Solicitor General, he chaired a working group that drafted a report calling for various tort reforms relating to punitive damages.  A few years later, he gave an address at Fordham law school, advocating for the total abolition of punitive damages:  “Abolishing punitive damages would be an important, non-tinkering step toward real reform in the law.”  (See Law and Lawyers: The Road to Reform (March 1995) 63 Fordham L. Rev. 959, 968.)

Of course, lawyers are professional advocates and we often make arguments for our clients that differ from our own private beliefs.  Still, it’s surprising that Ken Starr would take this particular case.  The plaintiffs are probably thinking that his background will lend credence to the argument that, if billion-dollar punitive damages are to exist at all, this is the appropriate case for it.

Reuters is reporting that a jury in Ohio has awarded $2 million in compensatory damages and $10.5 million in punitive damages to a man who claimed he developed testicular cancer from exposure to a chemical that leaked from a DuPont plant. 

A DuPont spokesman said the company will appeal because the verdict “was the result of trial rulings that misrepresented the findings of an independent science panel and misled jurors about the risks” of exposure to the chemical in question (perfluorooctanoic acid, also known as PFOA or C8).

The EEOC believes that the Age Discrimination in Employment Act authorizes punitive damages.  (See Enforcement Guidance on Retaliation and Related Issues.)  Courts often find the EEOC’s interpretations of federal employment laws persuasive.  But in this case, the Fifth Circuit was not persuaded.

The Fifth Circuit issued an opinion last week reaffirming its view that the ADEA does not authorize punitive damages.  (Vaughn v. Anderson Regional Medical Center.)

Plaintiff’s counsel in that case told Bloomberg BNA that the Fifth Circuit stands alone in holding that punitive damages are unavailable under the ADEA.  Not so, according to the author of an ADEA treatise.  Howard Eglit, who writes the treatise Age Discrimination, says numerous courts have addressed whether the ADEA authorizes punitive damages, and “the response has been unanimously in the negative.”  (2 Age Discrimination § 8:110 (2d ed.).)

The plaintiff’s counsel in Vaughn plans to seek Supreme Court review to resolve the split of authority that he says the Fifth Circuit has created, but Eglit’s treatise suggests it will be an uphill battle to show that such a split even exists.

Claims Journal reports that a Jackson County Missouri jury has awarded $20 million in punitive damages and $450,000 in compensatory damages to a plaintiff suing American Family Insurance for retaliation and age and sex discrimination.  Missouri is proving to be a very friendly venue for plaintiffs seeking punitive damages.  Just ask Johnson & Johnson and Abbott. 

Last Thursday, a federal jury in Dallas awarded $32 million in compensatory damages and $1 billion in punitive damages to six California plaintiffs who alleged they were injured by defective hip implants made by Johnson & Johnson’s DePuy Orthopedics unit.  The company immediately announced its plans to appeal, Reuters reports. 

Before any appeal, however, it is likely that the trial judge will reduce the punitive damages.  The judge in this case already reduced a big punitive damages award involving the same hip implants.  He ruled in July that a $500 million verdict was excessive, and reduced it to $151 million under Texas state law.

Johnson & Johnson was able to avoid punitive damages when facing similar claims in Los Angeles a few years ago, as we reported at the time.  But now Johnson & Johnson has to contend with this massive award, on top of the three big punitive damages verdicts in the Missouri talc litigation.  2016 has not been a good year for Johnson & Johnson in the courtroom.