In an effort to address the problem of excessive, multiple punishment, the Florida Legislature enacted a statute that “punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against that defendant in any state or federal court in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages.” The statute contains an escape hatch that allows for additional awards of punitive damages “if the court determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant’s behavior.” Continue Reading Florida Appellate Court Adopts Favorable Interpretation Of Punitive Damages Statute

In 2015, West Virginia enacted a statute that caps punitive damages at the greater of $500,000 or four times the compensatory damages. We blogged about the statute here, explaining that the West Virginia legislature was seeking to reform the state’s image as a “judicial hellhole” that is hostile to defendants. Continue Reading West Virginia Supreme Court Holds That State’s Cap On Punitive Damages Applies To Claims That Arose Before the Statute’s Effective Date

Just about a week after suffering its third punitive award in pelvic-mesh litigation, Johnson & Johnson found itself on the wrong end of a $105 million punitive award—close to 20 times the $5.4 million compensatory award—in litigation alleging that its iconic talcum powder causes ovarian cancer in women. Continue Reading Punitive Damages Overkill Redux: J&J Hit With Another Massive Disproportionate Punitive Award In Talc Litigation

800px-Judge_Henry_FriendlyAs early as 1967, Judge Friendly worried about the phenomenon of punitive damages overkill in mass tort litigation. Fifty years later, the problem persists.

Last week, a Philadelphia, Pennsylvania, jury awarded a plaintiff $2.5 million in compensatory damages and $17.5 million in punitive damages—seven times the compensatory damages—in the latest of a large series of cases alleging that Johnson & Johnson subsidiary Ethicon had failed to warn about the risks of its pelvic-mesh device. In previous cases, juries had imposed punitive awards of $5 million, $7 million, and $10 million. Continue Reading Punitive Damages Overkill: J&J Hit With Still Another Disproportionate Punitive Award In Pelvic-Mesh Litigation

A bankruptcy judge in the Eastern District of California recently issued a decision that is sure to raise appellate eyebrows.

Concluding in In re Sundquist that the defendant bank had violated the automatic stay by foreclosing on the home of a bankrupt mortgagor and enraged by what it perceived to be heavy-handed behavior both before and after the stay violation, the court awarded the plaintiffs $1,074,581.50 in compensatory damages and ordered the defendant to pay a whopping $45 million in punitive damages—i.e., nearly 42 times the quite substantial compensatory award.

But concerned that such a massive amount of punitive damages would be a windfall to the plaintiffs, the judge ordered the plaintiffs to pay $40 million, minus applicable taxes, to two non-profit organizations whose stated mission is to advance the interests of consumers in litigation and bankruptcy proceedings—the National Consumer Law Center and the National Consumer Bankruptcy Rights Center—and the five California state law schools. Specifically, the judge decided to bestow $10 million each (before taxes) on the two consumer law centers and $4 million each (before taxes) on the five law schools. Continue Reading Bankruptcy Court Imposes Massively Disproportionate $45 Million Punitive Exaction, Then Plays Santa Claus With $40 Million Of It

Car insuranceSeemingly minor legal issues sometimes can have a surprisingly significant effect. That is particularly true with the ratio guidepost because the effect of any dispute about the guidepost’s application is literally multiplied. We recently filed an amicus brief on behalf of a group of organizations in an Eighth Circuit appeal that proves the point: Dziadek v. The Charter Oak Fire Insurance Company, No. 16-4070. Continue Reading Mayer Brown Submits Amicus Brief For Chamber Of Commerce, American Tort Reform Association, And American Insurance Association In Eighth Circuit Appeal Involving Proper Application Of Punitive Damages Guideposts

TreatiseWe are excited to report that in late December Thomson Reuters released the fourth edition of the multi-volume treatise Business and Commercial Litigation in Federal Courts.  As in the first three editions, we contributed the chapter on punitive damages—Chapter 48 in the new edition.

The punitive damages chapter, which spans 154 pages, provides strategic insights bearing on every phase of a punitive damages case—from the complaint through appellate review. It also contains comprehensive summaries of all of the Supreme Court’s punitive damages decisions, as well as decades of lower court decisions applying them.  Along the way, it highlights some of the key arguments and issues that may escape the notice of lawyers who do not regularly confront punitive damages litigation.

For those who do not wish to purchase the entire 15-volume treatise, the punitive damages chapter can be accessed on Westlaw under Secondary Sources > Commercial Law Secondary Sources > Commercial Law Texts & Treatises > Business and Commercial Litigation In Federal Courts – Chapter 48. We hope that those who consult it find it to be useful.

600px-I-70.svgSt. Louis and Kansas City have long been cross-state baseball rivals. Who can forget the 1985 I-70 World Series?

So it is hardly surprising that on the eve of St. Louis being named by the American Tort Reform Association as the number one Judicial Hellhole in the country, juries in Jackson County (home to Kansas City) would stake their own claim to that dubious distinction by returning two jaw-dropping punitive awards in consecutive days. Continue Reading Kansas City Gives St. Louis A Run For The Money–Literally

Logo_of_the_Internal_Revenue_Service.svgA couple of months ago, the Kentucky Court of Appeals in Grant Thornton LLP v. Yung cut a trial court’s award of punitive damages from $80 million to $20 million—reducing the punitive/compensatory ratio to 1:1. Continue Reading Kentucky Court Of Appeals Slashes Punitive Award Against Grant Thornton

Hot, burning tunnel & light. Way to another worldIn recent years, St. Louis has done much to earn a place on the American Tort Reform Association’s list of judicial hell holes.  Not content to rest on its laurels, the St. Louis circuit court grabbed the headlines again last week with a draw-dropping $70 million verdict against Johnson & Johnson ($67.25 million, including $65 million in punitive damages) and Imerys Talc America ($2.75 million, including $2.5 million in punitive damages) in a case alleging that J&J talcum powder caused the plaintiff’s ovarian cancer. Continue Reading St. Louis Jury Returns Another Jaw-Dropping Verdict Against Johnson & Johnson