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.
Continue Reading

The Due Process Clause of the Fourteenth Amendment requires procedural fairness in state trials, but that principle seems absent from a recent California Court of Appeal decision upholding a judgment against Kaiser Gypsum Company for almost $1.6 million in compensatory damages and close to $4 million in punitive damages.

Asbestos

Continue Reading

Virginia_supreme_court_sealThe drafting of jury instructions on punitive damages presents unique challenges for defense lawyers.  On the one hand, it is generally necessary to ask for an instruction that goes beyond existing law in order to preserve the argument that the law should be changed.  That is how the harm-to-nonparties issue was teed up in Philip Morris v. Williams.  And just importantly, because most pattern instructions on punitive damages are fairly perfunctory, it is often necessary to propose a more expansive alternative to ensure that the jury is adequately apprised of even existing law.

On the other hand, proposing an instruction that goes too far can result in reversal of a favorable verdict if the trial court goes along and gives it.  That is what happened in Cain v. Lee, a case recently decided by the Virginia Supreme Court.


Continue Reading

Judge Holding DocumentsIn a prior post, Andy Frey and I discussed the concern expressed by some defense lawyers that jurors in a bifurcated trial might bake punitive damages into their compensatory award because they are unaware that they will be able to impose punitive damages in a second phase.  We expressed the view that this concern can be readily addressed by instructing the jury before it deliberates in the first phase that, if it finds that the defendant acted with the requisite mental state, a second phase will commence to address the amount of punitive damages (if any).

The Missouri Court of Appeals’ decision last week in Advantage Buildings & Exteriors, Inc. v. Mid-Continent Casualty Co. confirms both that the concern about inflation of the compensatory damages is a real one and that the solution is proper instruction of the jury.


Continue Reading