Roman Catholic Diocese of Vermont Hit With 18:1 Punitives Award

by SSFC on December 19, 2008

A jury in Vermont has awarded a former altar boy $192,500 in compensatory damages, and $3.4 million in punitive damages, for suffering alleged molestation at the hands of a priest in 1977.  According to the Times Argus of Vermont, this is the third trial this year involving the same priest, who, amazingly, still retains his collar though he’s retired from active service.  As a result, the diocese of Vermont appears to be teetering on the edge of bankruptcy.  The diocese has announced it will appeal the verdict.

The ratio of punitive to compensatory damages appears to violate the  Supreme Court’s suggestion in Exxon Shipping v. Baker (an admiralty case decided on statutory grounds) that a punitive ratio in excess of single digits, or even 1:1, is unconstitutional.  But as Cal Punitives points out, is this the case with which to put that suggestion to the test?

{ 10 comments }

1 Eric Turkewitz 12.19.08 at 4:32 pm

The idea that SCOTUS has settled on a 1:1 ratio for puntive damages, or even a 10:1 ratio is a fiction. I believe there are already 5 votes on the court that will support a 100:1 ratio if personal injury is involved. You can find my analysis at the link below from Feb. 2007 following Round 2 of Phlip Morris v. Williams. Be sure to take in the addendum as it includes commentary from the bench from Justice Breyer:

http://www.newyorkpersonalinjuryattorneyblog.com/2007/02/philip-morris-punitive-damages-decision.html

2 SSFC 12.19.08 at 4:46 pm

Thanks for that Eric. I agree that the Court hasn’t yet made up its mind on punitive to compensatory ratios (the best case on this point is BMW North America v. Gore, where the opinion boils down to “This is unconstitutional because it shocks us, so there”), but the state of the law now seems to be that some sensible ratio is called for.

I wonder how one would go about framing a good due process distinction between punitive damages for outrageous conduct causing bodily, mental, or emotional injury on the one hand, and punitive damages for outrageous conduct causing pure economic loss on the other hand.

Mind you, I’m not offended by this Vermont verdict at all. The case was outrageous any way you slice it.

3 Eric Turkewitz 12.19.08 at 4:54 pm

I don’t think you will ever see the Supreme Court legislate a bright line test. Nor should they. An economic injury over a car (BMW v. Gore) isn’t the same as injuries from tobacco company fraud.

The verdicts should be looked at on a case-by-case basis, the same as courts routinely do in NY for compensatory damages. The two standards are whether it “shocks the conscience of the court” or whether it “deviates materially from what would be reasonable compensation.”

If the verdict looks out of line, then the judge puts it to the test. And the third line of defense against any runaway verdict is the appellate court.

4 SSFC 12.19.08 at 5:25 pm

An economic injury over a car (BMW v. Gore) isn’t the same as injuries from tobacco company fraud.

Agreed, but let’s think hypothetically: Suppose we have two plaintiffs, one the victim of a rear-end collision by a drunk driver (which in most states justifies the imposition of punitive damages), who suffers whiplash, visits the chiropractor five times, and has no permanent injury. The second plaintiff is a disabled widow whose life savings, a small amount, were invested with a hedge fund manager who was running a corrupt ponzi scheme, which would also justify punitives.

Even if you accept a distinction between bodily injury and economic damage, it breaks down in this scenario. The whiplash victim, though his injury is personal and subjective, is back at the gym in two weeks, while the widow, whose compensatory damages can be calculated with absolute certainty, is ruined. Yet, if what you’re saying is that the law should or may impose a ratio cap on punitives in the second case but not the first, that seems a horrible injustice. While one deplores drunk driving, it’s not as abominable as swindling. And the whiplash victim’s injury, while tragic, seems less than the widow’s purely economic loss.

It would be easier for me to deal with you if you’d come out and say that any cap on punitives, from a due process standpoint, is wrong. But it might be easier for both of us, in our practices, if the Court would make up its mind. As it stands, we’re left with a standard similar to that of Potter Stewart evaluating obscenity, “I know it when I see it.”

Well I know it when I see it too, but my standards for evaluating obscenity, or an obscene award of punitive damages, may differ from those of Justice Scalia, and they may differ from those of Justice Breyer, and they certainly differ from your own (on the punitives question – I like a good racy movie now and then).

No wonder many complain that the law is arbitrary. Arbitrariness from a jury, that I can accept. I’d rather try a case in front of a jury than have a bench trial any day of the week. But arbitrariness from an appellate court interpreting the Constitution? No thanks.

5 Eric Turkewitz 12.19.08 at 5:56 pm

It would be easier for me to deal with you if you’d come out and say that any cap on punitives, from a due process standpoint, is wrong

I thought I did say that. :)
Here’s my comment:

I don’t think you will ever see the Supreme Court legislate a bright line test. Nor should they.

To be clear, I am referring to an arbitrary one-size-fits-all cap. A limit that varies with the conduct is the appropriate way to look at the punitive damage issue.

6 SSFC 12.19.08 at 6:08 pm

Sorry Eric, we’re clear, though if this was geometry class I’d be an obtuse angle.

I think the problem is that on this issue the Supreme Court is made up of the worst gang of teases you’ll find outside a college sorority, though they’re not nearly as good to look at.

7 William Nuesslein 12.21.08 at 10:54 am

How in God’s holy name can anyone make a finding on events of this type that are thirty years old? Is testimony the truth or the result of suggestion? There is no way to know. The overwhelming likelihood is for confabulation. I can see where the people of Vermont would confuse convictions with reality. The problem is that our hideously ignorant about testimonial evidence. Shame on them.

To the point of the post punitive damages. We have sentencing guidelines that attempt to match the severity of punishment to the severity of the crime.
A judge can use the guidelines to argue his final version and some rationality is involved. Putative damages are determined by passion an ignorance. They should be eliminated completely.

8 SSFC 12.21.08 at 11:14 am

While I don’t know much at all about Vermont law William, I can tell you that many states in the late 70s and 80s enacted statutes of repose, which bar suits brought a certain number of years after the defendant’s last wrongful act giving rise to an injury. These differ from statutes of limitation, which generally bar suits a certain number of years after the plaintiff discovers the injury. The distinction is relevant in suppressed memory cases, but these statutes were generally written in response to asbestos claims, where the injury may manifest decades after the last exposure.

However, even in states which enacted statutes of repose, the statutes generally weren’t retroactive, because removing a vested (though undiscovered) right to bring a lawsuit poses a constitutional problem.

As for recovered memory cases generally, except for claims involving the Catholic church those have largely died out, in part due to strong research and scholarship calling into question the experts who first propounded the theories of recovered memory, and in part due to public (meaning judicial and jury) awareness of the abuses that accompanied the criminal child abuse “witch trials” of the 1980s, such as McMartin and Little Rascals.

As for your views on punitive damages generally, while I disagree with Mr. Turkewitz, it’s safe to say that my views are closer to his than to yours. I do support punitive damages and think they have a valuable purpose in deterring wrongdoing. I just believe that there need to be limits on otherwise unbridled jury discretion as to amounts and uneven or arbitrary judicial control over the awards.

9 William Nuesslein 12.22.08 at 9:12 am

SSFC,

Thank you for your post. You mention the McMartin and Little Rascals cases. They showed that the problem with suggestion and imagination can exists early in a case. Statues of repose can not entirely solve the problem. In my opinion the main problem is that judges do not understand evidence and human reactions to irrational babble.

Do you know of any evidence that putative damages actually deter bad behavior? Certainly oil companies do not want to lose tankers. Those boots and their cargoes cost bundles of money without putative punishments. I am against putative damages in part because I can’t see how they can be properly limited.

10 Gregory Shrock 12.31.08 at 12:00 pm

To anyone who understands Catholic doctrine, it’s not amazing that this person remains a priest. The Catholic Church has long taught, based on its interpretation of scripture, that a priest is a priest forever, and that “even the most lamentable downfall, which, through human frailty, is possible to a priest, can never blot out from his soul the priestly character.” If he commits murder, rape or any other gross sin, he may expelled from the active ministry and “reduced to the lay state” (which is what apparently has happened to the priest in question here), but he remains a priest forever.

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