Even more on punitive damages

The Internet has so substantially increased the amount of information that is available at the press of a button that I often feel overwhelmed.  I know I should be reading legal blogs and commenting on them more than I do, but life is short and I have a day job that requires my attention.  One blog that I enjoy is California Punitive Damages by Horvitz & Levy.  Even though the blog is written by an appellate firm that mostly handles defense appeals, it is always informative.  Recently the authors reported on a paper entitled "The Changing Landscape of Blockbuster Punitive Damage Awards."  You can check out the blog at http://calpunitives.blogspot.com/ or you can download the paper from http://ssrn.com/abstract_id=1516007.

When Exxon Shipping Co. v. Baker (2008) 128 S.Ct. 2605 was decided in 2008, the U.S. Supreme Court approved a 1:1 ratio between punitive and compensatory damages.  While some legal scholars maintained that this holding was limited to federal maritime cases, others took a more concerned approach that 1:1 would become the norm in all civil cases, especially where punitive damages were accompanied by substantial compensatory damage awards, which is often the case.

In Roby v. McKesson (2009) 2009 WL 4132480, which was recently decided, the California Supreme Court put its stamp of approval on a 1:1 ratio as the constitutional limit in an employment case.

Not surprisingly, California leads the states in terms of number of blockbuster cases and the highest total value of awards, i.e., $49.7 billion.  The authors describe blockbuster punitive damages as a "comparatively new phenomenon," noting the first award breaking the $100 million barrier was in 1985.  They note a "consistent downward trend in the total sale of blockbuster damages in recent years."  The authors also note that State Farm v. Campbell (2003) 538 U.S. 408, 123 S.Ct. 1513, 155 LEd.2d 585 has "dampened the total value of blockbuster punitive damages as well as reducing the number of blockbuster punitive damages in any year."

The authors identified the industries hardest hit by large punitive damages, starting with the cigarette industry, followed by energy and chemical, finance, investment, insurance, pharmaceutical, health care, and violent crime cases. Oddly enough, the automobile industry did not have a statistically significant premium.

In their conclusion, the authors opine that State Farm has indeed had a dampening effect on blockbuster punitive damage awards.  That dampening effect appears to continue with the publication of Exxon Shipping.  The authors also conclude that the levels of punitive damage awards are not driven by the level of compensatory damages, which one might expect to be high if behavior justifying punitive damages is present, but the type of industry involved.

Some updates on punitive damages

Today the California Supreme Court filed its Opinion in Roby v. McKesson, 2009 WL 4132480.  In Roby, the jury found plaintiff was wrongfully discharged due to her medical condition and related disability.  It awarded Roby $3,511,000 in compensatory damages and $15 million in punitive damages on her claims of harassment and discrimination against defendant McKesson.  Roby also obtained an award of $500,000 in compensatory damages and $3,000 in punitive damages against the harassing supervisor.

The Court of Appeal was unpersuaded there was sufficient evidence of harassment and reduced the compensatory damages to $1,405,000.  It also found the punitive damage award was excessive under federal constitutional standards and reduced it to $2 million.

The California Supreme Court found the jury's noneconomic damages awards to be hopelessly ambiguous, but plaintiff conceded this issue rather than face a new trial, a concession the defendants accepted.  The Court rejected the Court of Appeal's determination that the record was insufficient to support the harassment verdict.  Finally, the Court agreed that the punitive damages exceeded the federal constitutional limit, but disagreed with the limit set by the Court of Appeal (1.42 times the reduced compensatory damages of $1,405,000), reducing the amount even further, and stating, "We hold that in the circumstances of this case the amount of compensatory damages sets the ceilings for the punitive damages."  (Opn., pg. 2)

The Court applied the three guideposts set forth in State Farm Mut. Auto Ins. Co. v. Campbell (2003) 538 U.S. 408, including the five reprehensibility factors, and concluded McKesson's reprehensibility was at the low end of the range of wrongdoing.  It also concluded the compensatory damages might include punitive damages.  As such, where the compensatory damages are substantial, the Court stated "then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee." (Opn., pg.  38; State Farm, supra, 538 U.S. at p. 425.)  The punitive damages against McKesson were modified to $1,905,000.  The Court also ordered the trial court to reinstate the jury's $3,000 punitive damage award against plaintiff's supervisor.

The Opinion was written by Justice Kennard and Chief Justice George, and Justices Baxter, Chin and Corrigan concurred. Even though the Court concluded a 1:1 ratio is the federal constitutional limit, it noted, "We based this conclusion on the specific facts of this case." (Opn., pg. 39)

Justice Werdegar wrote a concurring and dissenting opinion, in which Justice Moreno concurred, opining that McKesson's reprehensibility was significantly higher.  Justice Werdegar's award would have been $3.8 million, for a 2:1 ratio.  She pointed out the "unusual task" given to the appellate court to make a "culpability assessments independently" on the basis of a factual record.  Because the appellate courts make their decisions on the "cold record" rather than based on live testimony, Justice Werdegar noted the appellate court "is not as well situated as the jury or trial court to make a fine-tuned culpability judgment about conduct that has been the subject of a trial. "  As such, review should be "performed modestly and with caution."  (Dissenting Opn., pg. 2)

She notes that appellate courts do not sit as a replacements for the jurors but as a check on arbitrary awards.  (Ibid.) Justice Werdegar did not necessarily believe the large noneconomic damages award had a punitive component, and believed the majority failed to consider McKesson's wealth, noting McKesson was #38 on the Fortune 500 and had a market value of $5 billion.  Certainly the reduced punitive damage award could not have a truly deterrent effect on McKesson.

I agree with Justice Werdegar's assessment that fixing a constitutional maximum is a "lamentably inexact enterprise."  (Dissenting Opn., pg. 6.)  But since the difference between highest award, which would have been given by Justice Werdegar (representing a 2:1 ratio), compared to the lowest by the California Supreme Court, represents a difference of over $1.8 million, one might assume that this fact alone demonstrates how the appellate courts may be exceeding their roles in determining the highest constitutionally permissible award, and instead, the courts are deciding the proper amount as if they were replacement jurors who did not have the benefit of actually attending the trial.  But neither award, representing $11.2 million less than the jury's award, will cause McKesson to lose much corporate sleep.

Getting a ruling from the trial court - Pt. 1

What about the judge who refuses to rule even though you request a ruling or says that he or she will only consider admissible evidence?  This situation may arise when the judge forgets to rule on the objection or states something like “the court will only consider admissible evidence” or it was “following Biljac and is only considering the relevant and pertinent evidence.”  (Demps v. San Francisco Housing Authority, supra, at pg. 575.) 

When the trial court refers to Biljac, it means Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, in which the appellate court held that a trial court is not required to issue formal rulings on objections because a summary judgment will be upheld if it is correct on any grounds, even those not relied on by the trial court.  In addition, the court in Biljac raised a presumption that a trial court is not relying on irrelevant or incompetent evidence when it makes its ruling.  Well, maybe in a perfect world but experience teaches us otherwise. This ruling has been overruled by several courts and has been criticized - as it should be - by many courts and attorneys.

In Demps, the appellate court indicated that the trial court was not required to issue a written or formal ruling, and furthermore, there was little purpose served in such a requirement because the appellate court reviews the matter de novo, including objections.  Other courts have held that the failure to obtain a ruling should be treated as though the objections were impliedly overruled and the objectionable evidence then becomes part of the admissible evidence. 

So what is an attorney to do?

Joining forces with Consumer Attorneys of California

A few bloggers who support consumer rights are getting together to offer plaintiffs' attorneys a valuable resource and bundle of information.  Here's the first post from H. Scott Leviant, who writes The Complex Litigator at www.thecomplexlitigator.com:

George Washington once said:

Discipline is the soul of an army. It makes small numbers formidable; procures success to the weak, and esteem to all.

Letter of Instructions to the Captains of the Virginia Regiments [July 29, 1759]. The advocates of consumer rights, viewing the resources of defense firms and corporate defendants, can relate to the trepidation felt by the out-numbered and out-gunned Continental Army. Because of that disparity in resources, Consumer Attorneys of California ("CAOC") consolidates the voices of consumer attorneys throughout the state to (1) preserve and protect the constitutional right to trial by jury for all consumers, (2) champion the cause of those who deserve redress for injury to person or property, (3) encourage and promote changes to California law by legislative, initiative or court action, (4) oppose injustice in existing or contemplated legislation, (5) correct harsh, unjust and oppressive legislation or judicial decisions, (6) advance the common law and promote the public good through the civil justice system and concerted efforts to secure safe products, a safe workplace, a clean environment, and quality health care, (7) uphold the honor, integrity and dignity of the legal profession by encouraging mutual support and cooperation among members, (8) promote the highest standards of professional conduct, and (9) inspire excellence in advocacy. This post is a multi-blog effort to inform consumer attorneys about CAOC's value and encourage participation in CAOC through membership.

CAOC works tirelessly to protect or advance those causes of import to consumers and their attorneys in California. Often those efforts, though valuable, receive little fanfare. For example, CAOC recently sponsored SB 510, which affects the re-sale of what are known as "structured settlements," in which victims receive financial compensation over a period of time for medical expenses and basic living needs, as determined by a jury. Before SB 510 was signed by the Governor, Courts expressed frustration at their inability to prevent the sale of structured settlements on terms that might ultimately lead to long-term financial hardship for the victim. Now, SB 510 gives judges the information they need to make a reasoned decision about the propriety of a structured settlement sale.

Measures like CAOC-sponsored SB 510 help protect the most vulnerable members of our society and ask for nothing in return. They exemplify the spirit of CAOC. However, CAOC is only as effective in its mission as its membership allows it to be. When consumer attorneys join the ranks of CAOC, its voice gains in power and clarity. But if consumer advocates sit on the sidelines, hoping to benefit from the work of others, CAOC is stretched thin, and we are all at risk as a result.

Now, consumer advocate bloggers from across the state are combining their voices to call upon each and every lawyer and firm that regularly represents plaintiffs to join CAOC, thereby strengthening the consumer's first line of defense. The blogs participating in this unified call to action are:

• The Complex Litigator (H. Scott Leviant)


• The UCL Practitioner (Kimberly Kralowec)


• Bailey Class Action Daily (Matt Bailey)


• California Employee Rights Blog (James J. Peters)


• An Appeal to Reason (Donna Bader)


• California Personal Injury and Insurance Blog (Jonathan G. Stein)


• California Debt Blog (Jonathan G. Stein)


• TrialLawyerTips.com (Mitch Jackson and Lisa Wilson)


• California Injury Blog (John Bisnar)


• San Diego Injury Lawyer Blog (Ross A. Jurewitz)


• San Diego Car Accident Lawyer Blog (Ross Jurewitz


• San Diego Injury Accident Lawyer Blog (Ross A. Jurewitz)


• California Nursing Home Abuse Lawyer Blog (Walton Law Firm LLP)


• San Diego Injury Law Blog (Walton Law Firm LLP)


• California Personal Injury Law Blog (Norman Gregory Fernandez)


• Biker Lawyer Blog (Norman Gregory Fernandez)


• California Credit Law (Mark F. Anderson, Carol Brewer & Andy Ogilvie)


• Lemon Law Blog (Mark F. Anderson, Carol Brewer & Andy Ogilvie)

Show your support of consumers' rights by joining and supporting CAOC. Together we can make an impact that we cannot make alone.

Objections in motions for summary judgment

In motions for summary judgment, the objecting party must either (1) submit objections in writing pursuant to California Rules of Court, rule 3.1354 or (2) make arrangements for a court reporter to be present at the hearing.  (CRC, rule 3.1352.)  I would always recommend in favor of preparing written objections.  Written objections must be served and filed at the same time as the objecting party's opposition or reply papers are due. (CRC, rule 3.1354(a).) You want the judge to have the benefit of your written objections while he or she is reviewing the motion.  You don't want the judge to engage in a comprehensive review, reach a tentative decision, and then hear objections for the first time at the hearing.  If, for some reason, you are forced to wait until the hearing, then I would recommend that your objections be as specific as required of written objections in CRC, rule 3.1354(b). 

Pursuant to CRC 3.1354(c), you must also provide a proposed order to allow the court to rule on written objections.  What could be easier?  The court simply has to check the line for "sustained" or "overruled."  And if you forget to ask the court for a ruling, you have a document in your hand to remind you.  Despite this seemingly streamlined procedure, I still recommend that the objecting attorney limit his or her objections to those that are truly important to the motion as no judge wants to rule on numerous objections, especially when they relate to unimportant facts or the objections are boilerplate.  Presenting the trial court with a select few objections enhances the chances of getting a ruling.

Relying on an oral objection poses a risk that you might forget to obtain a ruling.  A similar problem might arise where the objecting party fails to prepare a proposed order, which is mandatory under CRC, rule 1.354(c).)   If you know the objection in advance and just forgot - yikes! - to prepare written objections, you might consider preparing a proposed order in a similar format to accompany your oral objection.

Failing to object and obtain a ruling on the objection can have a significant impact on appellate review.  The failure to obtain a ruling on evidentiary objections will result in a waiver, allowing the appellate court to consider the objectionable evidence in reviewing the motion. (Demps v. San Francisco Housing Authority (2007) 149 Cal. App.4th 564, 578.

What about the judge who refuses to rule even though you request a ruling or says that he or she will only consider admissible evidence?  We look at these situations in my next post . . .