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As a member of Mayer Brown’s Supreme Court & Appellate practice, C.J.’s practice focuses on insurance bad faith, products liability, federal preemption, and punitive and other non-economic damages, with a particular focus on cases that require the presentation of complex medical or scientific information.  C.J. regularly represents clients in the US Supreme Court, the various US Courts of Appeals, and state appellate courts and has argued in the Seventh Circuit, the New York Appellate Division, and several federal and state trial courts.  In addition to his appellate work, C.J. regularly works closely with trial counsel to present and preserve issues for appellate review.

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Application of the Supreme Court’s excessiveness guideposts to cases involving multiple defendants is one of the more confounding problems that arises in punitive damages jurisprudence. The Supreme Court of Texas got the issue right in Horizon Health Corp. v. Acadia Healthcare Co., a case in which several defendants were jointly liable for compensatory damages but individually liable for separate punitive awards.
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Car insuranceSeemingly minor legal issues sometimes can have a surprisingly significant effect. That is particularly true with the ratio guidepost because the effect of any dispute about the guidepost’s application is literally multiplied. We recently filed an amicus brief on behalf of a group of organizations in an Eighth Circuit appeal that proves the point: Dziadek v. The Charter Oak Fire Insurance Company, No. 16-4070.
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Everything for your ailmentsThings have been quiet in the world of punitive damages for the last few months, but two recent decisions substantially reducing punitive awards under the BMW/State Farm factors warrant mention. My colleague Miriam Nemetz will discuss one of them—Grant Thornton, LLP v. Yung—in a forthcoming post. In today’s post, I will address the Ninth Circuit’s decision in Mitri v. Walgreen Co.­a case in which my colleague Michele Odorizzi and I represented the defendant.
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Chicago_State_Athletics_wordmarkThe due process review of a punitive damages award for excessiveness has a number of interconnected parts. A series of relatively small errors can quickly add up and dramatically skew the outcome of a review process that is intended to impose predictability and consistency on the largely black-box process juries use when setting the amount of punitive damages.  The Illinois Appellate Court’s decision in Crowley v. Watson illustrates the point.
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US-CourtOfAppeals-10thCircuit-SealAlthough the Supreme Court’s modern due process cases have given lower courts a framework for deciding whether an award of punitive damages is excessive, some lower courts have been misapplying the Supreme Court’s guidance, refusing to disturb (or inadequately reducing) punitive awards that are much larger than necessary to accomplish the legitimate retributive and deterrent purposes of punitive damages.

Lompe v. Sunridge Partners, LLC, which is currently pending before the Tenth Circuit, is illustrative.


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We have noticed a disturbing trend recently of courts upholding punitive damages awards that are high multiples of the compensatory damages.  One example is Mitri v. Walgreen Co., in which the U.S. District Court for the Eastern District of California upheld a punitive award that is thirteen times the substantial compensatory award based almost entirely on the fact that the defendant is a wealthy corporation.

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Whenever a state high court agrees to consider whether a punitive award is excessive, it is big news.  So we were pleased to see the Wisconsin Supreme Court making some good news when it reduced the punitive damages award from $1 million to $210,000 in Kimble v. Land Concepts, Inc., __ N.W.2d __, 2014 WL 1584454 (Apr. 22, 2014). 

Even better, the court correctly interpreted several aspects of the Supreme Court’s reprehensibility, ratio, and comparative-fines guideposts that often give courts trouble.  See BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003).

Wooden Mallet and flag Of Wisconsin (clipping path included)Kimble involved a title company that concealed the absence of an easement providing access to a parcel of land and refused to defend the owner’s title when the lack of access was discovered.  The absence of an easement contributed to the owner losing a sale, although the property later sold after the owner purchased an easement providing access for $40,000.  Following trial, the plaintiffs were awarded $29,738.49 for their legal expenses in securing the easement and $1,000,000 in punitive damages. 

After granting discretionary review, the Wisconsin Supreme Court started on the right foot by noting that a punitive award is excessive not only when it is disproportionate to the defendant’s wrongdoing but also when it “is more than necessary to serve the purposes of punitive damages.” 

We often have argued that, when a lesser award would serve the state’s interest in punishment and deterrence, then the award must be reduced to that lesser amount because anything more violates due process.  Too often courts fail to recognize this substantive limit on the amount of a punitive award.
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