Punitive Damages Theory

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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As my colleague Andy Frey and I reported in an earlier post, an Illinois federal jury in July returned a $150 million punitive verdict against AbbVie without awarding the plaintiff any compensatory damages.  That verdict is likely to be thrown out because Illinois does not permit punitive damages to be recovered in the absence of compensatory damages.

Now, less than three months later, another Illinois federal jury has imposed $140 million in punitive damages against AbbVie for the same alleged conduct—namely, failure to disclose that its low-T medication AdroGel can cause heart attacks. Even putting aside AbbVie’s other challenges to the verdict—which include attacks on the admission of expert testimony and the sufficiency of the evidence that the plaintiff’s heart attack was caused by his two months of AndroGel use—the punitive award is unlikely to stand because it is 1000 times the jury’s $140,000 compensatory award.
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Inevitably, when conscientious judges delve into the multi-dimensional issue of excessive punitive damages, they get some things right and other things wrong. Such is the case with the Fourth Circuit’s recent decision in Daugherty v. Ocwen Loan Servicing, LLC. Unfortunately, as a doctrinal matter at least, the erroneous aspects of the decision predominate.  
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They don’t call the California Superior Court in Los Angeles “The Bank” for nothing. Late last month, a jury held Johnson & Johnson liable for $70 million in compensatory damages and $347 million in punitive damages in a case brought by an individual plaintiff who alleges that her terminal ovarian cancer was caused by using J&J’s talcum powder.
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You’ve likely seen by now media reports about an Illinois federal jury’s $150 million punitive award against AbbVie in a case brought by a plaintiff who alleged that AbbVie’s low-T medication AndroGel caused his heart attack.

The jury found against the plaintiff on his strict-liability and negligence claims. It found in favor of the plaintiff on his fraudulent-misrepresentation claim.  However, the jury awarded no compensatory damages on that claim; nevertheless, it imposed $150 million in punitive damages.
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