On Remand from the U.S. Supreme Court, the Oregon Supreme Court Reinstates $75.9 Million Punitive Damages Award

philip morris.jpgHoward Bashman has a nice summary of why the Oregon Supreme Court was able to reinstate $75.9 million in punitive damages against Philip Morris. In short, Philip Morris had two claims on appeal. One rested on a procedural due process claim “asserting that a defendant’s due process rights are violated if a jury assesses punitive damages to punish a defendant for having caused harm to persons other than the plaintiff.” The other substantive due process claim argued “that the punitive damages award was unconstitutionally excessive because, among other reasons, it was nearly 100 times larger than the award of compensatory damages.” The Supreme Court ruled only on the procedural due process claim and that is why Oregon could reinstate the damages.

Specifically, Philip Morris used jury instructions that were objectionable. As Bashman explains, “Under Oregon law, a party has no right to have a trial court deliver its proposed jury instruction unless the instruction is entirely unobjectionable.” Here, the Oregon court found other errors and so reinstated the claim. Bashman goes into whether Philip Morris will have a good chance of another Supreme Court case on the substantive claim. His analysis makes sense but I leave it to others to go into that aspect of Supreme Court litigation tactics.

His last point is the one that may be of most use to attorneys “the reason Philip Morris failed to benefit from the U.S. Supreme Court’s punitive damages ruling in its favor in this very case is that the trial lawyers for Philip Morris tried to slant their proposed punitive damages instruction too far in the defendant’s favor.”

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2 Responses

  1. Thought you might like to see this post from Stewart Weltman, who I work with.

    “In the Oregon case, the Supreme Court had reversed the punitive damage award because the jury instruction given by the trial court had instructed the jury to consider the harm caused by PM to people other than the plaintiff.

    “On remand, the Oregon Supreme Court affirmed the award – a ruling which on its face might seem like it was sticking a finger in the Supreme Court’s eye. But it wasn’t. The Oregon Supreme Court affirmed the award on the ground that the attorneys for PM had themselves proposed a jury instruction that was not in conformance Oregon law and thus they had no right under Oregon law to complain about the instruction that was ultimately used.

    To see entire post, check out: http://leanlitigation.typepad.com/weltman/2008/02/pigs-get-fed-ho.html

  2. Chris says:

    Here’s what I wrote at SCOTUSblog:

    Doesn’t seem right to me. The opinion turns on reading the proposed jury instruction (“Factors that you may find to bear upon the degree of reprehensibility include”) to contradict the statute (“Punitive damages, if any, shall be determined and awarded based upon the following criteria,” with a different list). But telling a jury that the factors it may consider include a bunch of stuff doesn’t suggest that they can’t consider anything else. What else would “include” mean? I also don’t see why the fact that the statute is mandatory, but the jury instruction is permissive, should matter–it was in fact true, after all, that among the factors the jury were permitted to consider were the ones listed in the instruction.

    Also, this stuff was unobjected-to when the instruction was offered, and if the plaintiff had made these objections at the trial, the defense could have suggested an alternative. Further, why not take the failure to object to the instruction as the plaintiff’s concession that she didn’t want to rely on the other statutory factors as reasons for more punitive damages? The paragraph at footnote five doesn’t cite anything at all. Maybe the “tipsy coachman” doctrine should apply here, but there seem to be pretty strong anti-sandbagging considerations against it.