Thursday, March 15, 2007

Bush's Judges' Legacy

I just read the opinions of the U.S. Supreme Court in Philip Morris USA v. Williams decided on February 20th of this year. It's a tobacco case out of Oregon by the family of a single smoker, Jesse Williams, not a class action case. Yet the jury awarded $79.5 million in punitive damages (along with the $821,000 ordinary compensatory damages). The Oregon Supreme Court upheld the verdict. And I find myself very disturbed by the U.S. Supreme Court's decision to reverse the damages award. While Philip Morris would have liked the Court to rule that the award was simply inherently way too big ("grossly excessive") and reverse for that reason, it did not go that far. Instead, the Court used what they called "procedural" grounds to reverse the award.

The decision was a close one, 5-4, with both of our new appointees siding in the majority along with Breyer, Kennedy and Souter. Justices Stevens, Thomas, Ginsburg and Scalia dissented.

The gist of the Court's holding is this: a jury may not punish a defendant for harm caused to others than the plaintiff(s) in the case at hand. The Court acknowledges that this holding is an extension of prior case law which did not previously explicitly state this.

The Court's opinion seems rational until the dissent provides a little more background on the particular facts of the case. The Due Process Clause, in the Court's opinion makes it unconstitutional for a defendant to be punished for harm caused to plaintiffs which it did not have the opportunity to cross-examine, present evidence of contributory negligence by, etc. Perfectly rational.

Except in the context of punitive damages awards which are inherently meant to punish a defendant. The Court expressly agrees that a plaintiff may present evidence of harm by the defendant to others in a like manner as that caused to the plaintiff in order to show how "reprehensible" the conduct of the defendant was, and the jury may award damages based on this level of reprehensibility in the defendant's conduct. But the jury, the Court says, is to base its punitive damages only on punishment of the defendant for the reprehensible conduct toward and injury of the plaintiff--not other non-parties. At least one dissenting judge takes issue with this entire concept, preferring to permit a jury to take into consideration harm to others when awarding punitive damages. But the concept does seem a rational one in light of a generous due process interpretation and I am not horrified by the idea inherently.

But the other dissenting justices give us a little more information about the case at hand, and hence my frustration is born!

Justice Ginsburg's opinion states that prior U.S. Supreme Court cases had already made it clear that a jury is properly instructed to consider the extent of harm suffered by others as a measure of reprehensibility, not to mete out punishment for injuries in fact sustained by non-parties. Ginsburg argues that the Oregon court followed this precedent and vacation of it's judgment is unwarranted, and I couldn't agree with her more based on the additional information on the case she provides. In particular, Philip Morris preserved no objection at trial with respect to this issue, therefore the issue was not properly before the Oregon Supreme Court and is not properly preserved for appeal before the United States Supreme Court either.

Why, I can't help but ask, was the Court willing in this case to reach outside the bounds of the case as postured when the trial court entered its judgment? Why, when so often the Court is pleased to avoid such issues by strictly enforcing procedural limits on parties' attempted appeals? Could it be that the Court wanted to vacate a $79.5 million judgment against Philip Morris? I love the Supreme Court and want to think this is crazy conspiracy theorist talk, but I can't explain this case any other way.

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