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Evan Tager is a member of the Supreme Court & Appellate practice in Mayer Brown's Washington, DC office. Identified by Chambers USA as one of America's leading appellate lawyers for the past eight years, and profiled by Legal Times as a leading appellate lawyer, Evan has been integrally involved in a range of issues of paramount importance to the business community, including punitive damages, class certification standards, admissibility of expert testimony, and enforceability of arbitration agreements.
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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.
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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.
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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.
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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.
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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.
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Louisiana generally does not permit punitive damages. But if an accident happens on navigable waters, and the plaintiff brings a claim under federal maritime law, a Louisiana jury can award punitive damages, and Louisiana courts then must decide the full panoply of issues that arise in punitive damages cases.  That’s what happened in Warren v. Shelter Mutual Insurance Co.

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