Curt Cutting at California Punitive Damages takes note of a jury’s very large verdict against San Diego Gas and Electric last month, including $40 million in punitive damages, after a helicopter fatally collided with a 130-foot utility tower located on the base at Camp Pendleton. “The plaintiffs claimed that SDG&E was negligent for not installing safety lights on the tower. SDG&E says the tower had been on the base for 25 years and they would have installed lights if the Marine Corps had asked. They contend the crash was the result of errors by the crew and they plan to appeal.” (Sept. 3; Tony Perry, “$55.6 million awarded in fatal Marine helicopter crash”, Los Angeles Times, Sept. 4). Bruce Nye at Cal Biz Lit calls the verdict a “stunner” (Sept. 8).
Posts tagged as:
punitive damages
If it’s going to put me in danger of removal from state to federal court, I guess it must have just been a typo. An Arkansas federal court bought the argument. (CAFA Law Blog, Sept. 18).
Unlike Roy Pearson in the celebrated D.C. case, Charleston, W.V. lawyer Richard D. Jones isn’t demanding $67 million from the dry cleaner, nor is he a sitting judge (his practice is in civil defense). About the only visible angle that distinguishes the case from the entirely ordinary: Jones wants punitive damages from defendants Pressed For Time and Lisa Williams. (W.V. Record, more).
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Gary Charbonneau had a gambling history, including substantial wins, which devolved into compulsive gambling in 2002. He blames this on his Parkinson’s disease medication, Mirapex, which he started taking in 1997. Mirapex changed its warning label to include reports of a correlation while Charbonneau was taking the drug; Charbonneau’s doctor kept prescribing the drug. Nevertheless, Charbonneau was able to persuade a jury that the failure to warn was what was responsible for his $200,000 gambling losses (much of which came from gambling illegally) and resulting marital troubles. The jury verdict even awarded $8 million in punitive damages, giving a whole new meaning to jackpot justice (though one would expect the trial court to reduce this substantially). The only press coverage of this lawsuit, aside from a handful of blogs (Pharmalot; TortsProf; InjuryBoard), is in an op-ed I wrote for today’s Examiner about the case and about how a Supreme Court case and Congressional legislation could affect it. (Theodore H. Frank, “Jackpot justice gets new meaning,” DC Examiner, Aug. 19).
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Wayne Davis, Jr., had a .203 blood-alcohol level, when he drove his pickup across the center line of a Camden County, Missouri, highway on March 24, 2000, and crashed head on into the compact car of Edward and Virginia Johnson.
You’ll be happy to hear that the Johnsons didn’t try to blame the beer company or the auto manufacturer, and simply sued Davis. Davis’s insurer, Allstate, contacted the Johnsons’ attorney, David Sexton, in April, and asked for access to the Johnsons’ medical record. Sexton responded by demanding the policy limits. Allstate requested the medical records three more times, and finally got the records on December 20. (A Dan Margolies Kansas City Star article (via Childs) incorrectly says Allstate did not respond, but the court’s opinion says otherwise.) Allstate immediately agreed to pay the settlement limits, but now Sexton refused, saying his April offer had expired, and he now wanted $3 million from Allstate. We’ll let the Missouri Court of Appeals explain what happened next:
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Perhaps we spoke too soon when we commended the Tennessee appellate court for getting it partially right. As we stated in November 2004:
In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly. The $105M verdict includes $98M in punitives.
We had more details of trial shenanigans in December 2004 and noted the reduction of the punitives by the trial court to a still unreasonable $20 million in June 2005. In December 2006, the intermediate appellate court threw out the punitive damages and the negligent infliction of emotional distress claim, leaving a $5 million compensatory damages verdict to be split between Chrysler and the driver responsible for the accident. An injustice, but at least a smaller injustice.
However, today, a 3-2 vote of the Tennessee Supreme Court made it a larger injustice again, reinstating $13,367,345 of punitive damages over a good-faith dispute over appropriate seatback design, giving no credit to evidence that the design in the Caravan was safer than the plaintiffs’ proposed design, and effectively disregarding Tennessee statutory law that compliance with federal standards creates a presumption against punitive damages. The Court did not mention Exxon Shipping‘s suggestion that punitive damages greater than a 1:1 ratio were possibly constitutionally inappropriate where compensatory damages were substantial and the defendant’s actions were not intentional or done for profit. The Court unanimously affirmed the elimination of the NIED claim; one justice would have thrown out the compensatory damages, as well, because of the volume of inadmissible and improperly prejudicial evidence admitted. (Flax v. Daimler Chrysler (Tenn. Jul. 24, 2008); id. (Wade, J., concurring); id. (Clark, J., partially dissenting); id. (Koch, J., partially dissenting); E. Thomas Wood, “High court upholds $18.4M damage award in DaimlerChrysler case”, Nashville Post, Jul. 24; Kristin M. Hall, AP/Chicago Tribune, Jul. 24). The majority decision relied heavily on the expert testimony of Paul Sheridan, an MBA non-engineer and professional anti-Chrysler witness whom a federal court called “wholly unqualified” to testify on seat back design.
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Today’s Wall Street Journal has a short version of my take on the Exxon Shipping v. Baker decision. Cf. also my Federalist Society podcast.
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I’ve done a podcast for the Federalist Society on the Supreme Court punitive damages decision in Exxon Shipping v. Baker.
A very belated update to our earlier posts of 2004 and 2005. As we stated in November 2004:
In 2001, Louis Stockell, driving his pickup at 70 mph, twice the speed limit, rear-ended a Chrysler minivan. Physics being what they are, the front passenger seat in the van collapsed backwards and the passenger’s head struck and fatally injured 8-month old Joshua Flax. The rest of the family walked away from the horrific accident. Plaintiffs’ attorney Jim Butler argued that Chrysler, which already designed its seats above federal standards, should be punished for not making the seats stronger — never mind that a stronger and stiffer seat would result in more injuries from other kinds of crashes because it wouldn’t absorb any energy from the crash. (Rear-end collisions are responsible for only 3% of auto fatalities.) Apparently car companies are expected to anticipate which type of crash a particular vehicle will encounter, and design accordingly. The $105M verdict includes $98M in punitives.
We had more details of trial shenanigans in December 2004 and noted the reduction of the punitives by the trial court to a still unreasonable $20 million in June 2005. And now the rest of the story:
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Oregon Supreme Court plays chicken with SCOTUS over $79.5 million punitive damages award in Williams v. Philip Morris case. [Sebok @ Findlaw; Krauss @ IBD; POL Feb. 1]
We’ve previously written about the problems of the Fair and Accurate Credit Transactions Act (FACTA), which imposes astronomical statutory damages on vendors whose credit card receipts fail to comply with ambiguous technical requirements. Today’s Daily Business Review recounts the tale of a small-business owner whose restaurant was hit with one of these suits, and how Congress has unanimously passed legislation, over some trial-lawyer objections, to shut down previous suits, though the bill far from solves the litigation problem from popping up again, and trial lawyers vow to continue pressing the suits. “U.S. Sen. Charles Schumer, D-New York, who sponsored the Senate bill, said, ‘Congress never intended for the law to be used to drive companies out of business with expensive legal cases that don’t involve any harm to consumers.’”
Meanwhile, Judge William M. Acker, Jr., of the Northern District of Alabama, had a series of summary judgment motions in four FACTA cases before him. He rejected the idea that class certification was inherently improper when the resulting statutory damages would bankrupt the defendant (an issue I discussed in my Liability Outlook on the subject), but held that the $100-$1000 statutory damages, without a showing of harm, were necessarily punitive in nature, and thus constitutionally impermissible under State Farm v. Campbell: [click to continue…]
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- Telemarketers working for lawyers and chiropractors “line up every day” at police and public records offices to buy car-crash records [Dallas Morning News]
- Nice work if you can get it: Bernardine Dohrn’s terrorist-to-lawprof career track [Kass, Chapman @ Chicago Tribune, Ed Morrissey/HotAir, PoL, Horowitz/DtN, Daily Northwestern/FrontPage, Malkin, Power Line]
- Mystery of embattled Florida debt-relief law firm Hess Kennedy (Mar. 6) deepens as whereabouts of lawyer Edward Kennedy are questioned [ABA Journal]
- Criticism mounts of Calif. AG Jerry Brown’s lawsuits using global warming theories to force higher-density development [Stewart/LA Weekly, Walters/SacBee, via Kaus, scroll]
- Kevin Pho (KevinMD.com) on defensive medicine [USA Today]
- Colorado firm says lawsuit’s “settlement mill” allegations are concocted “by a competitor who doesn’t like (Azar’s) advertising.” [Colorado Springs Gazette]
- Hey, you can rig up a disposable camera to give you a little shock; it might also give you a D felony record under school zero tolerance [WTNH via Greenfield]
- One good thing about those anonymous snitchlines for domestic abuse, you don’t have to worry about bogus calls or anything like that [Colorado Springs Gazette on Texas polygamist raid backstory]
- Lawyers get $2 million in fees in Netflix class action [WSJ law blog; earlier]
- Supreme Court refuses cert on that very curious $112 million (originally $1 billion) land-contamination verdict from Louisiana [Exxon v. Grefer, Dow Jones/Fortune; CalPunitives link roundup; earlier; more background at Laura Hart/Louisiana Law Blog]
- Cow-pie bingo event falls victim to liability fears [three years ago on Overlawyered]
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In February of last year, I wrote at length about an appalling jury verdict (June 2004) and disingenuous appellate decision in an SUV rollover case:
It went generally unnoticed last November when the California Supreme Court refused to review an intermediate court’s decision in Buell-Wilson v. Ford Motor Co. But then again, it went generally unnoticed when a jury awarded an arbitrary $368 million in damages in that case, when the trial judge reduced that verdict to an arbitrary $150 million judgment, and when an intermediate appellate court reduced that figure to an arbitrary $82.6 million (which, with interest, works out to over $100 million).
The US Supreme Court remanded to consider in light of Philip Morris v. Williams. For whatever reason, the California Court of Appeals decision to be even more disingenuous and say “We don’t care about Williams” reaffirming the $82.6 million got much more attention. Bruce Nye has the best analysis of the “thumb in your eye” decision; Lisa Perrochet also analyzes the verdict. John Rohan is critical. Press coverage: Recorder/Law.com; San Diego Union-Tribune; Reuters; AP/SJ Mercury News. Ford will appeal.
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- Oregon Supreme Court plays chicken with SCOTUS over $79.5 million punitive damages award in Williams v. Philip Morris case. [Sebok @ Findlaw; Krauss @ IBD; POL Feb. 1]
- Speaking of punitive damages, I did a podcast on Exxon Shipping v. Baker. I can’t bear to listen to it, so let me know how I did. [Frank @ Fed Soc]
- Arkansas case alleged legal sale of pseudoephedrine was “nuisance” because meth-makers would buy it; case dismissed. [Beck/Herrmann]. This is why I’ve stockpiled Sudafed.
- Lawyers advertise for refinery explosion victims before fire goes out. [Hou Chron/TLR]
- Connecticut Supreme Court: cat-attack victim can sue without showing past history of violence by animal. [On Point] Looking forward to comments from all the anti-reformers who claim to oppose reform because they’re against the abrogation of the common law.
- Op-ed on the Great White fire deep pockets phenomenon. [SE Texas Record; earlier: Feb. 2]
- “FISA lawsuits come from Twilight Zone.” [Hillyer @ Examiner]
- Legislative action on various medical malpractice tweaking in Colorado, Hawaii, and Wyoming. [TortsProf]
- Request for unemployment benefits: why fire me just because I asked staffers for a prostitute? [Des Moines Register]
- “So much for seduction and romance; bring in the MBAs and lawyers.” [Mac Donald @ City Journal; contra Belle Lettre; contra contra Dank]
- Where is the Canadian Brandeis standing up for free speech? [Kay @ National Post]
- In defense of lobbying. [Krauthammer @ WaPo]
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- “What you will not see in the findings of this bill, where politicians typically describe the problem they intend to solve, is any evidence that arbitration harms consumers or anyone else.” [WSJ]
- You saw it first on Overlawyered (Jun. 9; Jul. 20; Sep. 14): “Plaintiffs Lawyers in ‘Blood Feud’ Over Fees From $2 Billion Settlement” [American Lawyer]
- Junk science verdict against Dole Pineapple and Dow Chemical over pesticide use. [Cal Biz Lit]
- Alabama Supreme Court points out that good-faith contract dispute does not merit multi-billion-dollar punitive damages. [Birmingham News; Marketwatch; Exxon v. Alabama via Alabama Appellate Watch via Bashman]
- Still more Montgomery Blair Sibley follies. [Legal Times]
- The latest farm follies. [Postrel; Mair; Rauch]
- Why Ron Paul is a crank [Frum]
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The latest AEI Liability Outlook explores my take on the tort reform implications of October Term 2006.
In 1981, Curtis Campbell (Campbell) was driving with his wife, Inez Preece Campbell, in Cache County, Utah. He decided to pass six vans traveling ahead of them on a two-lane highway. Todd Ospital was driving a small car approaching from the opposite direction. To avoid a head-on collision with Campbell, who by then was driving on the wrong side of the highway and toward oncoming traffic, Ospital swerved onto the shoulder, lost control of his automobile, and collided with a vehicle driven by Robert G. Slusher. Ospital was killed, and Slusher was rendered permanently disabled. The Campbells escaped unscathed.
Guess quickly: which plaintiff in the resulting twenty years of litigation won the biggest jury verdict?
How many of you say Ospital?
How many of you say Slusher?
You’re both wrong. The plaintiff with the biggest jury verdict was Curtis Campbell, whom a jury awarded an incredible $147.6 million.
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