California Punitives by Horvitz & Levy

  • Philip Morris v. Accord: Cert Petition on Punitive Damages Issue Will Be Considered on February 15

    The Supreme Court will consider the petition for certiorari in Philip Morris USA, Inc. v. Accord at next week’s conference. The issue presented is whether, under the Due Process Clause, defendants’ liability for punitive damages in a mass tort trial may be adjudicated prior to a finding of compensatory liability.

    The cert. petition is available on SCOTUSblog here, along with the brief in opposition, the petitioner’s reply, and amicus briefs by the U.S. Chamber of Commerce and Ciba corporation.
    SCOTUSblog flags this petition as one of several that have a reasonable chance of being granted.

    This is a recurring issue in California mass tort litigation. In addition to the due process issues raised in this cert petition, California law adds a further wrinkle: Civil Code section 3295 requires that punitive damages issues be tried “by the same trier of fact that found for the plaintiff,” which seems to preclude trial of punitive damages before liability issues.

  • AMA Study Shows that Caps on Punitive Damages Improve Access to Health Care, or Do They?

    This article discusses a new American Medical Association study, which “proves that capping punitive damages in medical malpractice cases both reduces doctors’ malpractice insurance premiums and increases the number of physicians available to care for patients.” According to the article, the AMA claims that placing a $250,000 cap on punitive damages in states that don’t have effective reforms in place could reduce medical malpractice premiums by $1.4 billion nationwide.

    The author of the article may have misinterpreted this AMA press release, issued yesterday. The press release discusses a study about the impact of caps on noneconomic damages, not punitive damages. (As most readers of this blog probably know, California has a cap of $250,000 on noneconomic damages in medical malpractice cases, but no statutory cap on punitive damages.)

  • Interesting North Carolina Punitive Damages Decision on the Standard of Review

    Yesterday, in Scarborough v. Dillard’s Inc., the North Carolina Court of Appeals reinstated a $77,000 punitive damages award in a malicious prosecution case, addressing a procedural issue that has split California courts.

    The trial court had found insufficient evidence supported the award. The majority opinion disagreed, taking the position that the punitive damages should be reinstated if a scintilla of evidence existed to support the award. A dissenting opinion argued that the majority failed to take into account the requirement, under North Carolina law, that punitive damages are available only if the plaintiff proves the prerequisites for punitive damages by clear and convincing evidence. Given that higher burden of proof, the dissent would have affirmed the trial court’s order granting JNOV.

    From a California lawyer’s perspective, this opinion is interesting because California’s appellate courts have split on the same issue. California law also requires proof by clear and convincing evidence for punitive damages issues. Some appellate courts have held that the clear and convincing evidence standard must be taken into account on appeal, but others have disagreed. The California Supreme Court has issued conflicting opinions on this issue. Eventually the Supreme Court will need to revisit the issue and sort out this mess.

    Hat tip to Sean Andrussier at North Carolina Appellate Blog.

    UPDATE (By Jeremy Rosen on 2/6/2008 at 11:37 am): North Carolina is one of the many states which by statute have set limits on punitive damages. North Carolina law limits punitive damages to three times compensatory damages or $250,000, whichever is greater. (Exception is for harm caused by driving while impaired.)

  • Law.com Article About City of Hope Argument: “Calif. High Court’s Leanings Hard to See in City of Hope Patent Case”

    Mike McKee at the Recorder has this article [subs. req.] on Law.com today regarding yesterday’s California Supreme Court argument in City of Hope v. Genentech. Our earlier posts about the argument are here and here.

  • ABA Journal Article on Exxon Valdez Case: “At Sea Over Punitives: Justices Sail into Murky Waters over Damages from Infamous Disaster”

    The February 2008 edition of the ABA Journal has this article on the Exxon Valdez case pending before the U.S. Supreme Court. The article focuses on the maritime law aspects of the case, but quotes Robin Conrad of the U.S. Chamber of Commerce for the proposition that the case presents an issue of fairness that transcends maritime law: “While the Due Process Clause is not an issue before the court per se, the question of fundamental fairness is front and center.”

  • City of Hope Argument in California Supreme Court Focuses on Tort Liability Issues

    Today’s California Supreme Court oral argument in City of Hope v. Genentech, which we blogged about yesterday, focused entirely on liability issues. The argument did not get into whether the $200 million punitive damages award was excessive in violation of the Due Process Clause, although the excessiveness issue was covered in the briefs. The Supreme Court’s opinion is due by May 5, 2008.

  • Ohio Supreme Court Upholds Statutory Limits on Punitive Damages

    In an interesting opinion, the Ohio Supreme Court recently upheld a state tort reform statute that limits punitive damages to three times compensatory damages among other provisions. The official summary of the opinion states that:

    “In a 5-2 decision authored by Chief Justice Thomas J. Moyer, the Court ruled that legislation capping the amount of noneconomic damages that may be awarded to personal injury plaintiffs and placing limits on the amount of punitive damages that may be awarded in Ohio tort actions does not violate the constitutional rights of injured parties to trial by jury, to a remedy at law for their injuries, or to due process and equal protection of the laws. The Court also held that the challenged statutes do not violate provisions of the Ohio Constitution that guarantee open courts and the separation of powers between the legislative and judicial branches of government.

    “The case involved multiple constitutional challenges to S.B. 80, legislation enacted by the General Assembly in 2004 which took effect in April 2005. One of the challenged provisions, R.C. 2315.18, limits the amount of “noneconomic” damages (damages for intangible injuries such as pain and suffering, loss of consortium, disfigurement, mental anguish, etc.) that may be awarded to a plaintiff in a personal injury suit to the greater of $250,000 or three times the amount of “economic damages” awarded to the same plaintiff based on the same injuries, up to an absolute maximum of $350,000. The bill makes an exception to those limits for plaintiffs who suffer permanent disability or the loss of a limb or bodily organ system. Another challenged provision in the bill, R.C. 2315.21, prohibits Ohio courts from awarding a plaintiff punitive damages that exceed two times the amount of his or her compensatory damages from the same defendant.”

    UPDATE (by Curt Cutting on 2/5/08 at 10:40 am): This decision is particularly interesting given the Ohio Supreme Court’s history of striking down tort reform legislation, including restrictions on punitive damages, as unconstitutional. In 1999, the court struck down a prior statute that capped punitive damages. I’m certainly no expert on Ohio law, but this decision appears to represent a sea change in that state’s high court, at least with respect to punitive damages.

    FURTHER UPDATE (by Jeremy Rosen on 2/5/08 at 10:45 pm): To follow-up on Curt’s point, a 2004 analysis of the Ohio Supreme Court describes its history of decisions striking down tort reform legislation passed by the Legislature and suggests that the court was then at a crossroads with a consistent 4-3 split. Perhaps the more recent opinion discussed above shows a new direction for that court.

  • California Supreme Court Oral Argument in Case with $200 Million Punitive Damages Award Will Be Televised Tuesday Afternoon

    For those of you who have access to the California Channel, you can watch the oral argument in City of Hope v. Genentech on Tuesday afternoon at 2:00 p.m. PST. The case, which has been pending before the Supreme Court for three years (see the Supreme Court’s on-line docket here), involves a $300 million compensatory damages award and a $200 million punitive damages award.

    The issue presented (from the news release issued by the Public Information Office of the Administrative Office of the Courts) is “When an inventor or researcher entrusts a new idea or discovery to another under an arrangement providing for the other party to develop, patent, and commercially exploit the idea or discovery in return for royalties to be paid to the inventor or researcher, does a fiduciary relationship arise between the two parties, a breach of which may support tort, and in an appropriate case punitive, damages, or should the arrangement be treated like an ordinary contractual agreement, a breach of which supports only contract and not punitive damages?”

    Full disclosure: Horvitz & Levy is counsel of record in this case, representing City of Hope.

  • Will the Oregon Supreme Court Learn About Summary Reversals?

    The blogosphere is filled with rather colorful metaphors and descriptions for what the Oregon Supreme Court was saying to the United States Supreme Court in its recent opinion in Philp Morris v. Williams. See here, here, and here. But, of course, the United States Supreme Court can still have the last word. The Oregon Supreme Court based its holding on the asserted ground of an adequate and independent state law ground to overcome the due process violation found by the United States Supreme Court. However, there are exceptions to that doctrine. The United States Supreme Court has explained that the right of state courts to assert independent state law grounds is not unlimited: “It therefore is within our province to inquire not only whether the right was denied in express terms, but also whether it was denied in substance and effect, as by putting forward nonfederal grounds of decision that were without any fair or substantial support . . . [for] if non-federal grounds, plainly untenable, may be thus put forward successfully, our power to review easily may be avoided.” Thus, it is possible that the United States Supreme Court could reverse (even by summary reversal) the recent Oregon opinion on the basis that the independent state law ground regarding evaluating proposed jury instructions cannot be used as a shield to overcome a plainly unconstitutional trial. In the alternative, the court could grant certiorari and then consider the excessiveness of the award under the Due Process Clause.

  • “AGs Whip up Plaintiff Support in Exxon Valdez Suit”

    Legalnewsline features an article describing the efforts of Washington Attorney General Rob McKenna and Maryland Attorney General Doug Gansler to persuade other AGs to sign on to an amicus brief supporting the plaintiffs in the Exxon Valdez case. The article says they have convinced eighteen other states to join their cause.