You may hate tobacco lawsuits and lawyers who bring them. But you cannot help but agree that the tobacco industry is absolutely despicable. How the executives of the industry who lied to the country and the government for years can sleep is beyond me.
There are lots of people who agree, one group of them being the Supreme Court of the State of Oregon. This opinion affirms a significant punitive damage verdict against Phillip Morris.
Some excerpts:
Here is a decision that reminds us about the law of arguing damages. The decision – from Florida but true in Tennessee – holds that it is reversible error to refer to assets of the defendant in trying to communicate to the jury how to determine damages for pain and suffering.
It is nice to get a big verdict. But is better to get one you can keep. And that means you should know and follow the law of argument.
I wrote last week that the Tennessee Supreme Court approved certain changes to the Tennessee Rules of Civil Procedure (and other rules of procedure).
What I did not address is the proposed rule change that was not adopted by the Court. That is the proposed change to Rule 8.01, which I argued against in this post. Under this proposal plaintiffs would have been required to state the amount that was sought as damages in the original complaint.
I am glad that the Court did not adopt this proposal. Too many lawyers use the ad damnum as a marketing tool, knowing that a press that does not understand litigation will look only to the amount sued for to determine whether a lawsuit is noteworthy.
The Indiana Supreme Court has ruled that personal injury victims cannot receive punitive damages against a person who is dead.
The Court’s summary paragraph puts it this way: “The plaintiffs in this case were injured in an accident as passengers in a car driven by their father while he was intoxicated. After their father died of unrelated causes, the children brought this suit against his estate. We hold that Indiana law does not permit recovery of punitive damages from a decedent’s estate.”
In the text of the opinion the Court says this: “We think, however, there is little, if any, additional deterrence supplied by the prospect that one’s estate may be liable for punitive damages if one does not survive. Most tortfeasors in the case of an accident such as this presumably do not contemplate their own demise. If they consider punitive damages at all, they will deem themselves exposed to that possibility. To the extent the tortfeasor thinks at all about the consequences of his tort after he dies, he will recognize that he and his estate will have the obligation to provide full compensation to any victim. If we ever encounter a case where a tortfeasor seems to have considered his own death as an escape from punitive dam-ages incident to some intentional tort, we can address that issue at that time. For now, we are content to hold that the purposes of punitive damages are not served by recovering them from a decedent.”
Can a injured plaintiff who is back to work ask for damages for loss of future earning capacity?
Yes, rules the Eighth Circuit Court of Appeals, given the fact that there was evidence of ongoing physical problems and testimony by the plaintiff that he would probably not be working for as many years.
What do you do when you represent people who have been exposed to a dangerous substance but to date have not experienced an injury? Some lawyers have brought what is known as a medical monitoring claim, asking that the defendant be required to pay money to monitor the health of the plaintiff to identify and then treat health problems related to the exposure.
Plaintiffs in that situation are in a tough spot. If they wait until they suffer an “injury” there will be an argument that a statute of limitations or a statute of repose has run. If they file suit too early the defendant argues that the plaintiffs have not been injured and therefore do not have standing to bring a claim.
What is the state of the law on this issue? The Supreme Court of Michigan has just ruled that plaintiffs may not bring this type of claim. In Henry v. The Dow Chemical Corp. plaintiffs claimed that they were exposed to dioxin and needed medical monitoring. Dioxin is known to cause cancer, liver disease, and birth defects. The State of Michigan determined that the most likely source of the contamination was Dow’s Midland plant.
Each one of us deals with it almost every day – subrogation or reimbursement.
Many of those plans are covered by ERISA. This post by John Wood on our ERISA blog may be of assistance to you.
A defendant found 100% at fault claimed it should get the benefit of plaintiff’s settlement with a prior defendant. The Tennessee Supreme Court said “No” in an opinion authored by Justice Anderson.
This result is correct. While it is true that the plaintiff here recovered 150% of his damages (because the prior settlement gave plaintiff 50% of his damages) the plaintiff took the risk of getting less than 100% of his damages by settling with one defendant and leaving an “empty chair.” This is a calculated risk that worked out well for the plaintiff in this case, but could have just as easily resulted in the plaintiff receiving no additional recovery whatsoever.
The defendant had the right to prove the fault of the settling defendant and did not do so. It failed to carry its burden of proof, and the plaintiff got the benefit of that failure. If the defendant had carried its burden and proved that the settling defendant was 100% at fault the plaintiff would have had to “eat” the whatever amount of fault was assessed to the settling defendant over the 50% threshold.
The California Supreme Court has handed down two puntive damages cases that interpret State Farm v. Campbell.
One case is Johnson v. Ford Motor Corp., a case in which the plaintiff purchasers of a used vehicle proved that Ford had concealed a history of repairs to the vehicle. They also proved that Ford routinely committed such acts of fraud and earned significant profit from the conduct. The jury awarded $17,000+ in comnpensatory damages and $10 Million in punitive damages. The intermediate court cut the punitive award to $53,000+, saying that Ford could only be punished for what it did to the plaintiffs.
The Cal. Supreme Court reversed and remanded, saying that “California law has long endorsed the use of punitive damages to deter continuation or imitation of a corporation’s course of wrongful conduct, and hence allowed consideration of that conduct’s scale and profitability in determining the size of award that will vindicate the state’s legitimate interests (footnote omitted). We do not read the high court’s decisions, which specifically acknowledge that states may use punitive damages for punishment and deterrence, as mandating the abandonment of that principle.” The Court also said that “[t]o the extent the evidence shows the defendant had a practice of engaging in, and profiting from, wrongful conduct similar to that which injured the plaintiff, such evidence may be considered on the question of how large a punitive damages award due process permits. Although the lower court discussed Ford’s policies in addressing reprehensibility Äï noting “it is reprehensible for a regulated manufacturer to implement a scheme that intentionally undermines the protections granted consumers by state law” Äï the court gave no express weight, in its assessment of the constitutional maximum, to the profitability of that scheme to Ford or the scale at which Ford pursued it.” On remand, the court of appeals was directed to weigh these and other factors.
Punitive damages are hard to get and harder to keep. Defendants have been pushing the evils of punitive damages for over two decades now, and the United States Supreme Court has placed certain limitations on the award of such damages.
So, the reasonably prudent plaintiff’s lawyer must give careful consideration about whether punitive damages should even be requested. The decision is a complicated one.
To get a better idea of where the defense will be coming from if you seek punitive damages, go to the 2005 Winter Edition of FDCC Quarterly, advance to page 73 and read the article entitled “Making the Most of Your Opportunities: State Farm – Based Litigation and Non-Litigation Strategies to Limit Corporate Liability for Punitive Damages.” This 16-page article is a nice roadmap of what you can expect from your adversary.
Day on Torts