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.
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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.”
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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.
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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.
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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.
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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.
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“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.
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Chemerinsky Article About Impact of Upcoming Exxon Valdez Decision
Professor Erwin Chemerinsky has an article on the pending Exxon Valdez case in the January 2008 edition of Trial, a publication of the American Association for Justice. Not to be confused with the Justice League of America, the American Association of Justice is the group most recently known as the Association of Trial Lawyers of America.
Professor Chemerinsky’s article predicts this case may result in a 4-4 split, since Justice Alito has recused himself from this case. He notes that Justices Scalia, Thomas, and Ginsberg have consistently dissented from the Court’s prior decisions involving due process limitations on punitive damages awards. He also notes, however, that those prior dissents may have little relevance in Exxon Valdez because the Court declined to review the due process issue presented by Exxon’s cert. petition.
We previously blogged about the possible impact of the Exxon Valdez opinion here. And we blogged about the surprising disparity between the number of plaintiffs’ amicus briefs versus the number of defense amicus briefs here.
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Petition for Review Pending in California Supreme Court re Certifying Punitive Class: Lewis v. Robinson Ford
The CA Supreme Court recently granted itself an extra 30 days to rule on a petition for review raising the question whether a class action can properly be certified where punitive damages are sought. Here’s the docket in case you want to follow progress in the matter. Oh, and by the way, it’s our petition for review.
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Proposed Revisions to CACI Jury Instructions Available Soon
Bruce Greenlee, staff attorney for the California Judicial Council’s Advisory Committee on Civil Jury Instructions, has advised us that the committee has prepared a set of proposed revisions which they plan to release for public comment today or tomorrow. The revisions will appear here.
The proposed revisions will include changes to the insurance litigation series, but we do not yet know if the committee will be proposing any revisions to the punitive damages series. Obviously, it’s too soon for the proposed revisions to reflect the suggestions made by the Court of Appeal in Bullock (described here).
UPDATE (2/1/08 AT 3:14 pm): The proposed CACI revisions are now online, and they do not include any proposed revisions to the punitive damages series.