Punitive Damages Theory

We have previously posted—for example, here, here, here, and here—about the thorny problem of avoiding excessive punishment when multiple plaintiffs seek punitive damages for the same course of conduct.  Johnson & Johnson is the latest corporation to face this issue. 
Continue Reading Johnson & Johnson Hit With Two Huge Punitive Awards In Missouri Talcum Powder Litigation

License Plate1Tomorrow marks the twentieth anniversary of the Supreme Court’s decision in BMW of North America. Inc. v. Gore, the first time the Court had ever held that a punitive damages award was unconstitutionally excessive under the Due Process Clause.

In the ensuing 20 years, the decision has proved to be a foundational case in punitive damages jurisprudence.  It has been cited in hundreds, if not thousands, of lower court decisions; it has been the subject of dozens of scholarly articles; and it is featured in virtually every tort and remedies case book used in law schools.

Far from being “a road to nowhere,” as Justice Scalia charged in his dissenting opinion, BMW has served as a constraining force on punitive damages from the moment it was issued.  Before BMW, no court anywhere had held that a punitive award was unconstitutionally excessive.  After BMW, hundreds of punitive awards have been reduced after being found excessive under the “guideposts” announced in that decision.

Having been fortunate enough to have represented BMW in that historical case, we thought it appropriate to provide some reflections on the occasion of the decision’s twentieth anniversary.
Continue Reading Reflections on the Twentieth Anniversary of BMW v. Gore

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.
Continue Reading Tenth Circuit Reduces Punitive Award By More Than Ninety Percent In Carbon Monoxide Case

Eye PoppingIn a post a few weeks ago, I reported on a verdict by a federal jury in Atlanta awarding $1 million in compensatory damages and $10 million in punitive damages against the manufacturer of a hip implant. Not to be outdone, on December 14 a state-court jury in California awarded $9.8 million in compensatory damages and an eye-popping $70 million in punitive damages against Johnson & Johnson subsidiary Ethicon in a case alleging defects in a hemorrhoid stapler used to perform surgery on a hemorrhoid suffer.
Continue Reading California Jury Awards $9.8 Million In Compensatory Damages And $70 Million In Punitive Damages In Hemorrhoid Stapler Case

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.  
Continue Reading Delaware Superior Court Cuts Punitive Damages In Transvaginal Mesh Case

Hip ImplantIn a post last month, we reported on a district court’s rulings on motions in limine in the first bellwether hip implant trial against Wright Medical Technology Incorporated. The case subsequently went to trial, and last week a federal jury in Atlanta returned a jaw-dropping verdict of $1 million in compensatory damages and $10 million in punitive damages.

The jury found that the plaintiff’s hip implant was defectively designed and that the defendant negligently misrepresented how long the device would last. In addition, the jury found that, in marketing the hip implant, the defendant demonstrated knowing and reckless indifference to the rights of others—the standard for imposition of punitive damages under the applicable state law (Utah).
Continue Reading Federal Jury Awards $1 Million In Compensatory Damages And $10 Million In Punitive Damages In Bellwether Hip Implant Trial

As we have observed in a prior post, defendants in punitive damages cases often fail to develop evidence in mitigation of the amount of punitive damages, enabling the plaintiff to focus the jury on evidence about the defendant’s wealth and to argue—essentially with no resistance—that a substantial award of punitive damages will be necessary to change the defendant’s conduct in light of that wealth.

Hip ImplantBucking this trend, Wright Medical Technology and Wright Medical Group, the defendants in multidistrict litigation alleging defects in their hip implants, have developed evidence designed to persuade juries that large punitive awards would be unnecessary and counterproductive. In particular, the Wright Medical defendants have developed evidence about the various deleterious effects that a large punitive award might have.  They also have developed evidence relating to their good “corporate character.”


Continue Reading Federal District Court Issues Split Decision On Admissibility Of Evidence Bearing On Punitive Damages

Tall Case Grandfather Clock, Antique Empire Revival StyleThere are not many true affirmative defenses to punitive damages, much less ones that can be established on the face of the complaint.  One potential basis for dismissing a claim for punitive damages, which could be particularly useful in environmental cases alleging that conduct occurring in the distant past caused injuries that manifested only recently, involves the statute of limitations.

Although only a few courts have addressed the topic, there is a compelling conceptual argument that the statute of limitations for punitive damages should run from the date of the conduct for which punishment is sought, not the date of injury or discovery of injury, as would be the case for the underlying compensatory or remedial claims.  The basic idea is that the penal nature of punitive damages makes it appropriate to apply criminal-law limitations principles, under which the statute of limitations normally runs from commission of the wrongful act.


Continue Reading Why Criminal-Law Statute-Of-Limitations Principles Should Apply To Claims For Punitive Damages

US-CourtOfAppeals-10thCircuit-SealAlthough the Supreme Court’s modern due process cases have given lower courts a framework for deciding whether an award of punitive damages is excessive, some lower courts have been misapplying the Supreme Court’s guidance, refusing to disturb (or inadequately reducing) punitive awards that are much larger than necessary to accomplish the legitimate retributive and deterrent purposes of punitive damages.

Lompe v. Sunridge Partners, LLC, which is currently pending before the Tenth Circuit, is illustrative.


Continue Reading Mayer Brown Submits Amicus Brief For Chamber Of Commerce In Tenth Circuit Appeal Involving Excessive Punitive Damages