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Miriam Nemetz is a member of the Supreme Court and Appellate Practice in Mayer Brown’s Washington, D. C. office. Miriam has briefed dozens of cases in state and federal appellate courts and the U.S. Supreme Court, and has argued before the US Courts of Appeals for the D.C., Second, Sixth and Seventh Circuits. Miriam handles a wide variety of appeals but has developed specialized expertise in cases involving punitive damages and employment-related claims. Since 2009, Miriam has been selected by her peers every year for inclusion in The Best Lawyers In America in the specialty of Appellate Law. She is a co-author of Mayer Brown's Federal Appellate Practice treatise, published by BNA Books in December 2008.

Read Miriam's full bio.

Isolated Keys on White with Clipping PathMcPadden v. WalMart Stores East, L.P., No. 14-cv-475, awarded more than $31 million to a former Wal-Mart employee who had worked for the company as a pharmacist.  The plaintiff sued for discrimination and retaliation after she was terminated as discipline for losing a pharmacy key.  As is common in these cases, the news stories were technically accurate but left a misleading impression of what happened.
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Last week, we posted about a $10 million award of punitive damages in a product liability action against a manufacturer of hip implants.  We explained our view that the award was excessive, in part because hundreds of similar cases are pending across the country.

Roulette Wheel_LargeWe’ve also been following a much larger set of cases against medical device manufacturers—those involving injuries allegedly resulting from the use of surgical mesh to treat pelvic organ prolapse and stress urinary incontinence. An astonishing 85,000 cases against surgical mesh manufacturers have been centralized for pre-trial proceedings in federal district court in West Virginia, and thousands of additional cases have been filed in state courts.  As may be inevitable with so many turns of the Roulette wheel, a few plaintiffs have hit the jackpot.

The biggest verdict so far came last May, when a Delaware jury returned a $100 million award against Boston Scientific—comprising $25 million in compensatory damages and $75 million in punitive damages. In an October 9 order, the trial court in Barbra v. Boston Scientific Corp. reduced the verdict by a factor of ten—leaving Boston Scientific facing a judgment of $2.5 million in compensatory damages and $7.5 million in punitive damages.   That’s obviously a substantial improvement, but in our view the reduced award remains quite excessive.  
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In late December, the Second Circuit released a significant and interesting decision on excessiveness of punitive damages—and we say that not just because we represented the defendants in the case.

Traffic Cop Blowing WhistleTurley v. ISG Lackawanna, Inc. involved racial harassment of a steel worker by his fellow employees.  The plaintiff alleged that his employer and its parent did not respond adequately to the harassment.  A jury agreed and awarded the plaintiff a total of $1.25 million in compensatory damages—all for emotional distress—and $24 million in punitive damages against the corporate defendants.  The district court determined that the punitive damages were excessive and ordered a remittitur to approximately $5 million.

Although rejecting the defendants’ other arguments, the Second Circuit agreed with defendants that the punitive damages as remitted remained excessive.


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We congratulate our Editor-in-Chief Evan Tager for his inclusion in the National Law Journal’s inaugural list of fifty “Litigation Trailblazers and Pioneers.” The NLJ recognized Evan for, among other things, his groundbreaking efforts to limit punitive damages.  It highlighted his work with Andy Frey in BMW v. Gore, the the seminal case in which

Two Bites on a Red AppleThe U.S. Postal Service advertises that “shipping isn’t complicated.”  Taking a page from the Postal Service’s book, the Supreme Court of Louisiana on Tuesday said much the same thing about res judicata.  In a concise unanimous decision, the court reversed an award of punitive damages against Exxon on res judicata grounds.  The court held that a defendant may not be required to relitigate whether its conduct warrants punitive damages after a jury found in its favor on that very question in an earlier case involving the same plaintiff.
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Medical_Insurance_Concept_35162090A jury in the Western District of Louisiana made headlines last spring when it awarded a stunning $9 billion in punitive damages to a plaintiff who contended that the diabetes drug Actos caused his bladder cancer.  Last week, the district court cut the award by 99.6 % to approximately $37 million. Despite the impressive scale of the reduction, in our view the remitted award remains unconstitutionally excessive.  Furthermore, the district court’s lengthy opinion reveals significant errors of reasoning that we hope the Fifth Circuit will correct on appeal.  We address three of them here.
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We’ve been following the post-trial proceedings in Allen v. Takeda Pharmaceuticals North America, Inc., a product-liability action involving the diabetes drug Actos.  The case garnered headlines earlier this year when the jury awarded an astounding $9 billion in punitive damages against the two defendants.

Medical_Insurance_Concept_35162090On August 28, the district court in the Western District of Louisiana issued a ruling denying the defendants’ motion for judgment as a matter of law (JMOL) on liability for punitive damages and other issues.  Despite the suggestion of some news reports that the defendants are now on the hook for the $9 billion, the district court has not yet ruled on the defendants’ separate motion for a new trial under Rule 59, which argues among other things that the punitive damages are excessive.

In this post, I want to address a significant flaw in the district court’s reasoning concerning the defendants’ challenge to punitive liability. Although the error did not affect the decision’s outcome, the issue arises in other cases with some frequency and could make a difference in this case on appeal.


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We recently posted about the decision by the West Virginia Supreme Court of Appeals in Manor Care Inc. v. Douglas, — S.E.2d —-, 2014 WL 2835831 (W. Va. June 18, 2014), to cut a multimillion-dollar punitive award by more than half in a case against a Charleston nursing home.  In our prior post, which is available here, we commented on the court’s decision to reduce the punitive  damages proportionately (from $80 million to about $32 million) after it reduced the compensatory damages from $11.5 million to $4.6 million.

Map-US w-WVa magnified_7903574The West Virginia court’s decision to afford a proportionate reduction of the punitive damages after vacating part of the compensatory damages raises is noteworthy, but it may be even more striking that the court refused to reduce the $32 million punishment any further.  In an opinion that shows little inclination to follow the U.S. Supreme Court’s guidance that high awards of compensatory damages require lower ratios, the West Virginia Supreme held that the 7:1 ratio between punitive and compensatory damages was not excessive.  The decision suggests that large companies hit with very large verdicts in West Virginia state court may have difficulty obtaining any reduction of the punitive damages as long as the ratio is lower than 10:1 and the court deems the conduct to be highly reprehensible.


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