California Punitives by Horvitz & Levy

  • Philip Morris v Williams—It’s Baaaaaaack (Yet Another Punitive Damages Cert Petition to SCOTUS)

    When the Oregon Supreme Court thumbed its nose at the directives from the US Supremes in Philip Morris v. Williams, affirming a punitive damages award (one that’s 97 times the amount of the compensatory award) despite the trial court’s failure to instruct the jury that it should not punish for harm to nonparties, many of us were a bit surprised. (We’ve since noticed that the Oregon Supreme Court has something of a pattern going here.)

    Philip Morris is now knocking on the Supreme Court’s door again, this time with a cert petition that offers up these issues:

    QUESTIONS PRESENTED

    When this case was last before it, this Court reversed the decision of the Oregon Supreme Court and held that due process precludes a jury from imposing punitive damages to punish for alleged injuries to persons other than the plaintiff. Philip Morris USA v. Williams, 127 S. Ct. 1057, 1065 (2007). This Court then remanded the case to the Oregon Supreme Court with directions to “apply the [constitutional] standard we have set forth.” Ibid. On remand, however, the Oregon Supreme Court refused to follow this Court’s directive. Instead, the Oregon court “adhered to” the judgment that this Court had vacated because it found that Philip Morris had procedurally defaulted under state law and thereby forfeited its claim of federal constitutional error. App., infra, 22a.

    The questions presented—the second of which was accepted for review but not reached when this case was last before the Court—are:

    1. Whether, after this Court has adjudicated the merits of a party’s federal claim and remanded the case to state court with instructions to “apply” the correct constitutional standard, the state court may interpose—for the first time in the litigation—a state-law procedural bar that is neither firmly established nor regularly followed.

    2. Whether a punitive damages award that is 97 times the compensatory damages may be upheld on the ground that the reprehensibility of a defendant’s conduct can “override” the constitutional requirement that punitive damages be reasonably related to the plaintiff’s harm.

  • Holdgrafer v Unocal—Plaintiffs’ Petition for Rehearing Pending on Various Punitive Damages Issues

    We’ve previously discussed the recent Holdgrafer opinion reversing a $5 million punitive damages award because it was tainted by improperly admitted evidence of defendant’s dissimilar conduct toward nonparties. Plaintiffs have filed a petition for rehearing taking scattershot aim at the appellate decision. Plaintiffs argue, among other things, that the opinion “errs in holding that a de novo standard of review applies to the trial court’s determination of similarity of conduct,” and that the Court of Appeal’s “legal standards for determining whether conduct is ‘similar’ are too narrow.”

    The Court of Appeal has 30 days from the date of the opinion (i.e., until April 3) to rule on the rehearing petition. You can follow the progress on the court’s online docket.

  • Punitive Damages Oral Arguments at the United States Supreme Court

    Eugene Volokh has an interesting post on the different lawyers who have argued punitive damages cases before the United States Supreme Court.

  • Melvyn Weiss Pleads Guilty to Racketeering

    According to the New York Law Journal, famed plaintiff’s class action lawyer Melvyn Weiss of Milberg Weiss has pleaded guilty to a racketeering charge for participating in a scheme to pay kickbacks to lead plaintiffs in shareholder suits.

  • No Pro-Business Bias in Amicus Briefs at US Supreme Court

    Eugene Volokh points out that the number of amici briefs filed in “business” cases in the United States Supreme Court are roughly evenly divided between the “pro-business” and “pro-consumer” side, thus refuting a major claim made in the recent piece by Jeffrey Rosen. We blogged about this same issue previously here. Indeed, as we pointed out, the recent Exxon Valdez case shows the vast majority of amici briefs coming from the plaintiffs’ side.

  • Fotheringham v. Avery Dennison: Unpublished Opinion Reverses Summary Adjudication on Punitive Damages Claim

    The Second Appellate District, Division Seven, issued this unpublished opinion yesterday reversing the trial court’s summary adjudication of the plaintiff’s punitive damages claim. The court held that the defendant’s summary adjudication motion was deficient because it rested on argument alone and failed to allege facts showing that the plaintiff could not recover punitive damages. The court highlighted the difference between California and federal standards regarding summary judgment/adjudication motions:

    “Pointing out through argument, as Avery Dennison has done, that Fotheringham has no evidence of malice and oppression or of the requisite managing agent conduct is inadequate. . . . ‘Whereas, under federal law, “pointing out through argument” [citation] may be sufficient [citation], under state law, it is not.’ (Id. at p. 855, fn. omitted.) As Avery Dennison did not meet its initial burden in moving for summary adjudication of this claim, the trial court erred in granting summary adjudication here.”

  • Insurance for Punitive Damages?

    David Johnson writes about the recent Texas Supreme Court opinion in Fairfield Insurance Co. v. Stephens Martin Paving, LP which paves the way for at least some punitive damages to be insurable. Johnson contends that the opinion does not mean all punitive damages are insurable: “In Fairfield, the Court once again expressed language that would favor the enforcement of punitive damage insurance agreements where the insured was a business, but the opinion also contained language that would not have favored the enforcement of the same provisions against individual insureds. One could glean that the Court is continuing to follow its recent trends against equitable/policy arguments trumping express insurance provisions and in continuing to side with business insureds against insurers but not so much for individual insureds.” We previously blogged about this case here.

  • Jury Awards $25 Million In Punitive Damages in Asbestos Case

    Law.com reports that a Philadelphia jury has awarded $25 million in punitive damages in a mesothelioma case. The plaintiff’s attorney says this is the first time he has seen punitive damages awarded in a Philadelphia asbestos case in over 20 years. Even in California, punitive damages are rare (though not unheard of) in asbestos cases.

  • $375 Million Punitive Award for Murder; OJ Simpson Got off Easy

    The Reno Gazette Journal reports that a jury awarded damages of more than $590 million (with $375 million of that in punitive damages) to Darren and Charla Mack’s 9-year-old daughter and Charla’s estate, in the wrongful death lawsuit filed against Darren who had previously admitted stabbing Charla to death on June 12, 2006, in the garage of his townhouse. He has insisted that it was self defense, but pleaded guilty to first-degree murder on Nov. 5. He is now seeking to withdraw his guilty plea.

    UPDATE (by Curt Cutting at 11:30 AM): In case you’re wondering, the punitive damages award against OJ was $25 million.

  • Dan Markel Invites Feedback on Retributive Damages Article

    As noted in a prior post, Professor Dan Markel posted an abstract of his forthcoming punitive damages article entitled Retributive Damages. He has followed up with a post on Prafsblawg noting that a draft of the full article is available on-line, and inviting comments. His post on Profsblawg says the current draft is “somewhere between a shitty first draft and a final draft.”