The Associated Press reports that the plaintiffs’ attorneys in a Nevada lawsuit against a healthcare provideder have asked the jury for an award of $2.5 billion in punitive damages.  The jury has already awarded $24 million in compensatory damages to the two plaintiffs, who were both infected with hepatitis during routine outpatient endoscopy procedures.

Plaintiffs in the Vegas hepatitis litigation have already rung the bell for $500 million in punitive damages.  In that case, the plaintiffs were sued two drug companies that made and distributed propofol, the anesthetic drug used during the procedure. The plaintiffs alleged that the companies supplied the drugs in vials that were larger than necessary, tempting the healthcare providers to re-use the vials on multiple patients, even though the vials were labeled for individual use.

In this latest case, the plaintiffs’ request for $2.5 billion raises the question: why would a plaintiffs’ attorney ask for an amount of punitive damages that is more than 100 times the amount of the plaintiff’s actual harm, when such an award would surely be stricken as unconstitutionally excessive?  Perhaps it’s because he read “Punitive Damages, How Juries Decide,” by Cass Sunstein and others.  Sunstein found that the most significant predictor for a large punitive damages award is a large request.  That seems to hold true no matter how large the request is. So the plaintiffs’ attorney may be thinking that he won’t really get 2.5 billion, but he’ll end up getting more, all other things being equal, than he would have gotten by asking for something more reasonable.

Last week, the Louisiana Court of Appeal issued this opinion (Rachal v. Brouillette) increasing a jury’s award of punitive damages against a drunk driver from $100,000 to $500,000.  This opinion caught our eye because the idea of an appellate court increasing a jury’s award of punitive damages is literally unheard of in California.  Sometimes a California appellate court will disagree with a trial court’s decision to reduce a jury’s award, and will reinstate all or part of the original award.  But a California court would never increase the punitive damages above what the jury awarded.

Last November we reported about a Los Angeles jury’s award of $777,000 in compensatory damages and $7.7 million in punitive damages in a pregnancy discrimination suit brought by a former model on “The Price Is Right.”  We predicted at the time that the punitive damages award was not likely to survive through posttrial motions and appeal.

Our predictions haven’t always come true, but this time we got it right.  Law 360 reports (subscription required) that the trial judge has vacated the entire verdict and ordered a complete new trial on all issues.  The judge, Kevin C. Brazile, ruled that he had incorrectly instructed the jury on the standard to be applied in determining whether the producers of The Price is Right discriminated against the plaintiff.  The instructions failed to reflect the California Supreme Court’s recent holding in Harris v. City of Santa Monica, which requires a showing that the employer’s action was “substantially motivated” by discrimination.

Related posts:

Los Angeles jury awards $7.7M in punitive damages to former “The Price is Right” model; try to guess the final award without going over

The Sacramento Bee is reporting that a Sacramento jury has awarded $23 million in punitive damages in an elder abuse and wrongful death lawsuit against Emeritus Corp., the operator of an assisted living facility.  The jury also awarded $3.9 million in compensatory damages for pain and suffering, which the trial judge reduced to $250,000 under the Medical Injury Compensation Reform Act (MICRA).

If this story sounds familiar, you may recall that a Sacramento jury awarded $28 million in punitive damages in another nursing home case back in 2010. 

As reported in the New York Times, a jury in Los Angeles declined to award punitive damages against Johnson & Johnson in the first of many trials involving an allegedly defective artificial hip made by Johnson & Johnson’s DePuy orthopedics unit.  The jury awarded $8.3 million in compensatory damages, but didn’t give the plaintiff the $23 million he requested. 

In 2011, a Maryland jury awarded $1 billion in punitive damages against Exxon Mobil in a water contamination case.  It was the second highest punitive damages award of the year, according to our summary of that year’s big awards.  Earlier this week the Maryland Court of Appeals vacated the entire punitive damages award in that case (Exxon Mobil v. Albright).  The opinion says that the jury’s award of punitive damages was based entirely on the theory that Exxon Mobil committed fraud, but the plaintiffs’ evidence was legally insufficient to support their fraud claims.  So the court reversed the punitive damages without needing to reach the question of whether $1 billion was excessive.

UPDATE (3/4/13): One of our readers points out that the Maryland Court of Appeals is perhaps the only appellate court in the country whose justices wear red robes. Here’s a photo of of the court in its full red splendor:   

Today’s edition of the Daily Journal (subscription required) contains an article about a “record-setting” verdict awarding $21.7 million, including $16.5 million in punitive damages, in an employment discrimination case in L.A. superior court (Rodgriguez v. Valley Vista Services Inc.)  Per the article, the plaintiff claimed she was fired because of a mental disability, but the employer said she was fired because she failed to report to work or call in for three days. 

Last December, a Los Angeles jury awarded $2.3 million in compensatory damages and $15 million in punitive damages against Los Angeles Clippers owner Donald Sterling.  The plaintiff, a tenant in one of Sterling’s apartment buildings, claimed she lost most her personal belongings due to a fire in the building.  She also claimed that she suffered emotional distress and that her acting career was derailed by the fire.  By our count, the punitive damages award was the 6th largest in California in 2012.

Today, Judge William McLaughlin issued a 21-page minute order finding that plaintiff failed to present sufficient evidence to support her cause of action for intentional infliction of emotional distress damages.  Judge McLaughlin also concluded that the punitive damages were excessive.  Ultimately, he ordered a complete new trial on all issues, because he could not determine the extent to which the unsupported emotional distress claim affected the jury’s damages award. 

Full disclosure: Horvitz & Levy represented Sterling in connection with the posttrial motions.