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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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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In Gomez v. Cabatic, the New York Appellate Division, Second Department, affirmed the imposition of punitive damages in a medical malpractice case based on the defendant’s destruction of documents in an effort to avoid liability. But it ordered a remittitur of the large punitive award to $500,000—an amount equal to the compensatory damages.
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In a recent decision in In re Paulsboro Derailment Cases, the Third Circuit affirmed the dismissal of a case brought by plaintiffs who alleged that they had been exposed to airborne chemicals following a train derailment. This decision turned on the panel’s conclusion that the plaintiffs had not asserted a valid punitive-damages claim. The decision provides a useful reminder that state-law substantive standards for punitive liability have teeth. 
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Carbon-monoxide-3D-ballsLately, we have had many occasions to criticize courts’ analysis of punitive damages issues, so it is nice for a change to be able to report on the Tenth Circuit’s insightful decision in Lompe v. Sunridge Partners.  Readers may recall that we published a post about our amicus brief for the Chamber of Commerce in this case about a year ago.  I am pleased to report that the court adopted virtually all of the argument and analysis set forth in the amicus brief.
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Buckle upCases in which an appellate court holds that a state’s standard for punitive liability was not satisfied even though there was sufficient evidence to support liability for the underlying causes of action are regrettably rare. But in Nissan Motor Co. v. Maddox, the Kentucky Supreme Court recently did just that and in the process set forth some principles that may be helpful to defendants in future cases.

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West Virginia Flag as the territory Map on the Black BackgroundWest Virginia long has been at or near the top of the Chamber of Commerce’s and American Tort Reform Association’s lists of judicial hellholes. Last month, the State took a big step toward changing its image, enacting a series of laws that aim to eliminate “jackpot justice.”

Most pertinent to readers of this blog, the Legislature passed and the Governor signed a punitive damages statute that comprehensively reshapes the manner in which this remedy is administered in West Virginia.


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Many states restrict punitive damages to situations in which the defendant either intended to injure the plaintiff or disregarded a substantial risk of injury.  Regrettably, courts often misapply the latter basis for punitive damages in a way that undermines its function of limiting punitive damages to cases of truly egregious misconduct.

In his opinion for the Seventh Circuit in Jentz v. ConAgra Foods, Inc., the ever-insightful Judge Easterbrook recently took a step to reverse the tide.


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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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