Tuesday, February 20, 2007

After Phillip Morris: What can a jury consider for punitive damages purposes? SCOTUS sets an unworkable standard

In PHILIP MORRIS USA v. WILLIAMS, the Supreme Court held that the Constitution's Due Process Clause prohibits a jury from basing a punitive damages award upon its desire to punish the defendant for harming persons who are not before the court. Punishment for acts that do not harm the plaintiff, according to the Court, would amount to a taking of "property" from the defendant without due process of law. So far so good.

However, the Court went on to hold that evidence of actual harm to non-parties is relevant to the reprehensibility prong of BMW v. Gore. So, while the jury may listen to evidence of harms to others, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on non-parties. The Due Process Clause requires States to provide assurance that juries are not punishing a defendant for harm caused to strangers to the litigation. Unfortunately, the Court gives no guidance on just how trial judges are to administer this standard.

Philip Morris argued that the following instructions should have been given by the trial court:

"you may consider the extent of harm suffered by others in determining what [the] reasonable relationship is" between Philip Morris' punishable misconduct and harm caused to Jesse Williams, "[but] you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims . . . ."

I do not interpret the majority opinion as approving or disapproving of this instruction. But, even if we assume it is a proper instruction, this is no more than a fiction. Only a fool would believe that a jury faced with such a limiting instruction would actually abide by it. (Admittedly, such fictions are employed all the time by judges, but this fiction can implicate enormous sums of money). A better course for the High Court, in my opinion, would have been to exclude all evidence of harm to non-parties or to permit full consideration of harm to others for punitive damages purposes. As it stands, the Court has crafted an unworkable standard.

In actuality, a trial judge has but three options when considering evidence of harms to non-parties: (1) admit the evidence and give a limiting instruction similar to the one above;(2) exclude evidence of harm to non-parties on an 403-type analysis (i.e., such evidence is unduly prejudicial and will be considered by the jury in awarding damages; or (3) permit evidence of harm to non-parties on the grounds that it is not unduly prejudicial and that the evidence will not be a major factor in the jury's award of punitive damages. Depending on the circumstances of a case, all three might be viable options. We are not dealing with a bright-line rule here.

Only one thing is certain after this latest SCOTUS pronouncement on punitive damages: There will be more litigation and conflicting opinions as the trial and appellate courts attempt handle evidence of acts not harming the plaintiff.


Anne Reed said...

Thanks for a very thoughtful discussion. After I posted on this topic (far less academically), a judge suggested to me another option, which he thought was quite clear: trial judges could admit evidence of what was done to nonparties, but not of the harm caused to them. I think "unworkable" is still the right word. No matter how we phrase the instruction or the order in limine, it's hard to see real lawyers, judges, and juries applying the Philip Morris rule day in day out.

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