California Punitives by Horvitz & Levy

  • Florida Bar Journal Article: Why Punitive Damages and Criminal Sentences Are Reviewed Differently

    The December 2008 edition of the Florida Bar Journal contains an article entitled “Why Punitive Damages and Criminal Sentences Are Reviewed Differently and What It Means to Your Appeal.” The article is written by Jonathan D. Colan, an assistant U.S. attorney in the Appellate Division of the U.S. Attorney’s Office for the Southern District of Florida and an adjunct professor of issues in appellate law at the University of Miami School of Law. I could not find any online link for the article, but it can be found on Westlaw at 82-DEC FLBJ 30.

    For those who are interested in further comparisons between punitive damages and criminal law, you might want to check out Professor Chris Green‘s article “Punishing Corporations: The Food Chain Schizophrenia in Punitive Damages and Criminal Law.” Prof. Green was a commenter at this site before we decided to disable the comments feature so we wouldn’t have to moderate all the crackpot comments (not from Prof. Green, of course, whose comments were always thoughtful and on point).

  • Exxon Shipping: Potential Impacts are Well Beyond Maritime Law

    William E. Thomson and Kahn A. Scolnick recently published an article entitled “The Supreme Court Sets New Damage Limits Under Federal Common Law” in the October 2008 issue of the Federalist Society’s publication, Class Action Watch. The authors make the claim that while the case arose under federal martime law, “the decision is important in several respects that may have application far beyond that narrow context.” In particular, the authors contend “there is little principled basis for refusing to extend Baker’s1:1 ratio to other areas of federal common law.” As one example, the authors point to federal civil rights cases where the 1:1 ratio might be applied. The authors also speculate that the rationale for the 1:1 ratio would also apply equally in due process challenges to punitive damage awards in light of State Farm’s statement that in cases with “substantial” compensatory damages, a 1:1 ratio “can reach the outermost limit of the due process guarantee.”

  • English Tribunal Awards First Ever Punitive Damage Award

    This news is a few weeks old, but of interest to anyone who follows punitive damages. As reported by the Daily Express, “A lesbian soldier was awarded £186,000 compensation yesterday after she was sexually harassed by a male sergeant who then tried to wreck her career. . . . The payout included £50,000 in exemplary damages, £20,000 in aggravated damages and £30,000 for hurt feelings.” The paper reports that this is the first time an English employment tribunal has awarded exemplary damages.

    Update: This article indicates an appeal has been filed challenging the award. [1/8/09 – LP]

  • Radiologist Who Asked for $1 Billion Gets $7.5 Million

    Yesterday we blogged about a radiologist’s request for $1 billion in punitive damages. The Associated Press reports (via the San Francisco Chronicle) that the jury awarded $7.5 million in punitive damages, on top of $3.9 in compensatory damages already awarded.

    While the plaintiffs’ attorney may be disappointed that he didn’t get the $1 billion, this two-to-one ratio will be easier to defend on appeal. Nevertheless, given the size of the award, I would expect Kaiser to appeal and argue that its conduct did not warrant punitive damages and/or that the punitive damages award is excessive in light of the already substantial compensatory damages award. Given the recent trend of California courts reducing punitive damages awards to a one-to-one ratio when compensatory damages are substantial, Kaiser might be able to shave $3.6 million off the award, if nothing else.

    Update: For those who want to track this case on the Los Angeles County Superior Court’s website, the case number is BC365398. A hearing on post-trial motions is set for March 11, 2009.

  • Atallah v. Equilon: Court of Appeal Reinstates Punitive Damages Claim in Unpublished Opinion

    The California Court of Appeal (Second Appellate District, Division 8), issued an unpublished opinion yesterday reinstating a claim for punitive damages. The jury in this case had ruled for the plaintiff on liability, awarded compensatory damages, and found that the defendant acted with malice, oppression, or fraud. But the trial court did not allow the punitive damages claim to go to the jury because the plaintiff failed to present evidence of the defendant’s net worth. The Court of Appeal reversed, concluding that the trial court should have granted plaintiffs’ counsel a continuance in order to marshal evidence regarding the defendant’s financial condition.

    The plaintiff in this case fared better than the plaintiffs in these opinions from earlier this year, all of which reversed a punitive damages award because the plaintiffs failed to present adequate evidence of the defendants’ financial condition. The Court of Appeal was merciful to the plaintiff here because the trial court had, over the plaintiff’s objection, excused a witness who could have testified to the defendant’s financial condition. Although the Court of Appeal did not actually rule that the trial court erred in excusing the witness, the Court of Appeal concluded that the trial court should have given plaintiff’s counsel a short continuance to marshal his remaining evidence in light of that witnesses’ unavailability.

  • Radiologist Asks for $1 Billion in Punitive Damages Against Kaiser

    The Los Angeles Independent reports that plaintiffs’ attorney Charles T. Mathews has asked a jury to award $1 billion in punitive damages against Kaiser Foundation Health Plan and Southern California Permanente Medical Group. The defendants are accused of trying to silence the plaintiff, a radiologist, who complained about the performance of staff at the Kaiser Sunset hospital in Hollywood. The jury has already ruled for the plaintiff on the issue of liability and awarded $3.9 million in compensatory damages.

    If the jury accepted the invitation to award $1 billion in punitive damages, that award would be roughly 260 times the compensatory damages (and possibly higher if the compensatory damages will be further reduced based on an allocation of fault). Savvy plaintiffs’ lawyers generally don’t invite juries to award ratios like this, because a ratio that high would be closely scrutinized on appeal and would almost certainly be reversed. By contrast, a modest punitive damages award in the low single-digit range would not draw the same sort of immediate skepticism from appellate justices.

  • Los Angeles Times Compares Oregon Supreme Court to Brown v. Board of Education Foes in the 1950s

    The Los Angeles Times ran an interesting editorial yesterday on the recent oral argument in Williams III. The editorial discussed the tortured procedural history of this case and commented that the Oregon Supreme Court’s recent opinion was problematic: “When the defendant is a much-reviled tobacco company, such an end run might not seem so outrageous. But suppose lower courts in the 1950’s had succeeded in frustrating the implementation of the Supreme Court’s Brown vs. Board of Education decision outlawing segregated public schools? The court forestalled such subversion of its mandate in a 1958 decision emphasizing that ‘the federal judiciary is supreme in the exposition of the law of the Constitution.’”

    The editorial went on to make an even broader point that many state courts are not following the Supreme Court’s guidance on limiting the size of punitive damage awards: “The primary issue in this third round of litigation is whether Oregon’s highest court circumvented last year’s U.S. Supreme Court ruling. But that obscures another important element in this case: the continuing refusal of state courts to take seriously a series of U.S. Supreme Court decisions warning that punitive damage awards may not be ‘grossly excessive.’ That line of cases began in 1996 with a decision striking down a $4-million award to a physician who sued BMW for not disclosing that a ‘new’ car he had purchased had been repainted. His actual damages were only $4,000. Unfortunately, the Supreme Court hasn’t established a clear rule to determine when punitive damages become disproportionate to compensatory damages. At Wednesday’s argument, Chief Justice John G. Roberts Jr. suggested that using the Oregon case to make a clear statement about the limits of punitive damages might be the best way to reassert the court’s authority. We agree.”

  • Med Mal Punitive Damages: How Rare Are They?

    Law.com has a story today about a Florida medical malpractice case in which the trial court has allowed the plaintiff to seek punitive damages. The overall theme of the story is that the ruling is a major breakthrough because punitive damages are rarely allowed in med mal cases. The plaintiff’s lawyer, Spencer Aronfeld, says he has been contacted by lawyers across the country about this case and has been asked to speak about how to get punitive damages in med mal cases.

    The blog Litigation and Trial takes issue with the Law.com story. Pennsylvania attorney Maxwell Kennerly writes that the Law.com story greatly overstates the significance of the Florida ruling. He notes that the Mr. Aronfeld has achieved nothing more than crossing the first procedural hurdle to obtaining punitive damages, and has not actually obtained a punitive damages award from the jury, much less defended that award against posttrial motions and appeal.

    I agree with the Law.com article to the extent it suggests that punitive damages are rarely awarded in med mal cases. That seems to be true based on my California experience anyway. I think there are two reasons for that. First, California med mal plaintiffs must demonstrate a substantial likelihood of success before they can even allege a claim for punitive damages. (See Cal. Code Civ. Proc. section 425.13(a).) Second, it is extremely difficult in most medical malpractice cases for a plaintiff to convince the jury that a doctor’s conduct was not merely negligent, but was so despicable as to warrant punitive damages. But as rare as punitive damages awards may be in medical malpractice cases, they are not entirely unheard of, and I agree with Mr. Kennerly that it seems a bit premature for Mr. Aronfeld to be crowing about his victory at this stage in the proceedings. He has a lot more hurdles to cross before he and his client actually pocket any punitive damages.

    Hat tip: TortsProf blog.

  • Website Criticizes San Francisco Chronicle Story About $5.5 Million Punitive Damages Award

    This post on Indybay criticizes the San Francisco Chronicle for inaccuracies in its story on a $5.5 million punitive damages award against an Oakland landlord. As we noted in our post about this case, the Chronicle reported that the plaintiffs’ attorney would ask the trial judge to award the punitive damages to a charity instead of the plaintiffs. According to the Indybay post, however, the plaintiffs’ attorney says the Chronicle got it all wrong, and she does not intend to donate the entire award to charity – – only the amounts that can’t be distributed because some of the plaintiffs can’t be located:

    “The Chronicle article got it wrong when it suggested that I want housing organizations to get the full $5.5 million jury award, rather than the tenants,” said Laura Stevens. “They got it all wrong! It may take up to two years to wrap up this case if Thomas appeals the jury decision, and we are not sure where all of Thomas’ ex-tenants currently reside. If there’s any of the settlement left over after the tenants get their share, it’s customary to pass along the rest to housing organizations.

  • SCOTUS Argument Set for March 2 in Atlantic Sounding v. Towsend

    The U.S. Supreme Court has scheduled oral argument for March 2, 2009 in Atlantic Sounding v. Townsend, a case in which the court granted cert. to address the availability of punitive damages under maritime law.

    Hat tip: SCOTUSblog.