Punitive Damages Theory

Last summer, my colleague C.J. Summers and I posted a report about Saccameno v. U.S. Bank National Association, a Seventh Circuit case in which we had filed an amicus brief on behalf of the Chamber of Commerce of the United States.

In late November 2019, the Seventh Circuit issued an opinion reducing the punitive damages to a 1:1 multiple of the compensatory damages, agreeing with both the bottom line and a good deal of the analysis in our brief. And in late January 2020, the court denied the plaintiff’s rehearing petition.
Continue Reading Seventh Circuit Agrees With Mayer Brown Amicus Brief That $3 Million Punitive Damages Award Was Unconstitutionally Excessive

Last October, I reported on the $8 billion punitive verdict returned by a Philadelphia jury against Johnson & Johnson in a case alleging that the company had failed to warn that its antipsychotic drug Risperdal could cause young men to develop breasts.

I expressed the view that a punishment of this size in an individual case is proof positive that the jury was animated by passion and prejudice and that a reduction of the punitive award would therefore be an inadequate remedy.

Regrettably, the trial court overlooked the fact that preposterous awards like this are indicative of a malfunctioning jury and instead merely reduced the punitive damages to $6.8 million—ten times the compensatory damages.
Continue Reading A $6.8 Million Band Aid

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.
Continue Reading Mayer Brown Submits Amicus Brief For Chamber Of Commerce In Seventh Circuit Appeal Involving Proper Application Of Punitive Damages Guideposts

Usually, when a defendant gets a punitive award reduced to the same amount as the compensatory damages, it considers that a victory. But while such a reduction recently saved Johnson & Johnson $15 million, I don’t think that it should be satisfied with the result.
Continue Reading Federal District Court Reduces Punitive Damages To Amount Of Compensatory Damages—But That’s Still Not Enough

In State Farm Mutual Automobile Insurance Co. v. Campbell, the Supreme Court strongly implied that in some cases even a 1:1 ratio of punitive to compensatory damages might be too high.  In Torres v. B/E Aerospace, Inc., the California Court of Appeal took that hint to heart.
Continue Reading California Court Of Appeal Affirms Remittitur Of Punitive Damages To Lower Than 1:1 Ratio

Only three months after AbbVie obtained a retrial of a case in which a jury had imposed $150 million in punitive damages without awarding any compensatory damages, a new jury awarded the same plaintiff $200,000 in compensatory damages and $3 million in punitive damages.
Continue Reading New Jury Imposes Disproportionate Punitive Award In AbbVie Retrial

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.

Continue Reading Louisiana Supreme Court Wades Into Punitive Damages In Maritime Context

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.
Continue Reading New York Appellate Division Allows Punitive Award Based On Post-Injury Spoliation of Evidence But Reduces Ratio to 1:1

The Ninth Circuit recently issued an unpublished memorandum opinion reducing a $2.5 million punitive award against GEICO to $1,064,282.44—four times the compensatory damages—in a Montana insurance bad-faith case. When it comes to punitive damages doctrine, the decision is a mixed bag.
Continue Reading Ninth Circuit Issues Mixed-Bag Decision On Punitive Damages In Insurance Bad-Faith Case

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.
Continue Reading Federal Jury Returns $140 Million Punitive Verdict Against AbbVie In Second AndroGel Trial