By now, you’ve probably read reports of the $8 billion punitive verdict against Johnson & Johnson in an individual case alleging failure to warn that young men using its antipsychotic drug Risperdal could develop breasts.  Robot-like, virtually every article about the verdict says that the verdict is likely to be reduced because it is disproportionate to the $680,000 award of compensatory damages. Continue Reading If This Isn’t A Product Of Passion Or Prejudice, What Is?

Although the Supreme Court identified three guideposts for evaluating whether a punitive award is unconstitutionally excessive 23 years ago in BMW v. Gore and refined those guideposts 16 years ago in State Farm v. Campbell, lower courts continue to make conceptual errors interpreting and applying the guideposts. The Seventh Circuit will have the opportunity to address and rectify several such errors made by a district court in upholding a $3 million punitive award in Saccameno v. U.S. Bank National Association. Continue Reading Mayer Brown Submits Amicus Brief For Chamber Of Commerce In Seventh Circuit Appeal Involving Proper Application Of Punitive Damages Guideposts

On June 24, the Supreme Court held in Dutra Group v. Batterton that punitive damages may not be awarded under federal maritime law in connection with an unseaworthiness claim. Continue Reading Supreme Court Holds That Punitive Damages May Not Be Awarded In Connection With Unseaworthiness Claims

In an earlier post, I discussed the Supreme Court’s grant of certiorari in Dutra Group v. Batterton, which presents the question whether punitive damages may be awarded under federal maritime law in connection with an unseaworthiness claim.

On behalf of six fishing-industry trade associations, my colleague Matt Waring and I submitted an amicus brief in Dutra arguing that the Court should not allow punitive damages to infiltrate this unique body of law. Continue Reading Mayer Brown Files Amicus Brief Urging Supreme Court To Hold That Punitive Damages May Not Be Awarded In Connection With Unseaworthiness Claims

Should divided panels of federal appellate courts really be deciding state-law issues of first impression? That’s what happened last month in Lindenberg v. Jackson National Life Insurance Co. In Lindenberg, two Sixth Circuit judges—over a lengthy dissent by the third member of the panel—resolved two state-law issues in a manner that expands the availability of punitive damages under Tennessee law. Continue Reading Sixth Circuit Invalidates Tennessee’s Punitive-Damages Cap and Holds That Punitive Damages Are Available Under Tennessee Law For Bad-Faith Denial Of Insurance Benefits

When the Supreme Court agrees to hear a punitive damages case, that’s always news—even when the case involves something as arcane as the availability of punitive damages under maritime law.

But the Court’s grant of certiorari in Dutra Group v. Batterton on December 7 is all the more noteworthy because it will be the first punitive damages case in which Justices Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh will have participated as members of the Court. (Justice Alito was a member of the Court when it decided Exxon Shipping Co. v. Baker—coincidentally , another maritime case—but recused himself.)

The question that the Court will decide in Dutra is whether a seaman covered by the Jones Act may recover punitive damages in connection with an unseaworthiness claim. The maritime-law doctrine of unseaworthiness provides a cause of action to seamen who are injured due to their employer’s failure to provide a seaworthy vessel. This strict-liability cause of action exists alongside the Jones Act, which provides a cause of action for seamen injured or killed as a result of their employers’ negligence. Continue Reading Supreme Court To Decide Whether Punitive Damages May Be Awarded In Connection With Unseaworthiness Claims

Usually, when a defendant gets a punitive award reduced to the same amount as the compensatory damages, it considers that a victory. But while such a reduction recently saved Johnson & Johnson $15 million, I don’t think that it should be satisfied with the result. Continue Reading Federal District Court Reduces Punitive Damages To Amount Of Compensatory Damages—But That’s Still Not Enough

Over the years, we have reported on many cases in which courts adhered to the Supreme Court’s guidance in State Farm (and Exxon Shipping Co. v. Baker) that, when compensatory damages are “substantial, a 1:1 ratio of punitive to compensatory damages may be the maximum that due process allows. Recently, however, two state courts deviated from that trend and held that a 2:1 ratio was the constitutional maximum. Continue Reading Is 2:1 The New 1:1?

In State Farm Mutual Automobile Insurance Co. v. Campbell, the Supreme Court strongly implied that in some cases even a 1:1 ratio of punitive to compensatory damages might be too high.  In Torres v. B/E Aerospace, Inc., the California Court of Appeal took that hint to heart. Continue Reading California Court Of Appeal Affirms Remittitur Of Punitive Damages To Lower Than 1:1 Ratio

Only three months after AbbVie obtained a retrial of a case in which a jury had imposed $150 million in punitive damages without awarding any compensatory damages, a new jury awarded the same plaintiff $200,000 in compensatory damages and $3 million in punitive damages. Continue Reading New Jury Imposes Disproportionate Punitive Award In AbbVie Retrial