This is one of a series of articles under the by line “Butler on Bad Faith” originally published in Mealey’s Litigation Report: Insurance Bad Faith, Vol. 20, #10, p. 32 (September 19, 2006).
[Editor’s Note: John V. Garaffa is a senior associate with the Law Firm of Butler Weihmuller Katz Craig LLP with offices in Miami, Mobile, Tallahassee, and Tampa. He devotes his practice to the litigation of property coverage issues. This commentary, other than the quoted material, are the author’s opinions; not his law firm’s, and not Mealey’s Publications. Copyright © 2006 by author. Responses are welcome.]
On May 30, 2006, the U.S. Supreme Court again granted a petition for writ of certiorari in the ongoing dispute between Philip Morris and the widow of Jesse Williams, an Oregon resident who died of lung cancer after smoking cigarettes for about 47 years.
The current Constitutional odyssey began when counsel for Mrs. Williams sued Philip Morris for negligence and fraud, alleging that Williams’ death resulted from his reliance on petitioner’s campaign to undercut public information about the risks of smoking. The jury found Philip Morris liable for negligence and fraud and awarded Plaintiff $21,485.80 in economic damages, $800,000 in non-economic damages, and $79.5 million in punitive damages. The punitive damage award was thus 96.7 times the jury’s award of economic and non-economic damages.
The opinions by the Oregon Court of Appeals and the Oregon Supreme Court reveal that counsel for Mrs. Williams presented no evidence that anyone other than Mr. Williams actually relied on Phillip Morris’s alleged misrepresentations or that those misrepresentations actually caused injuries to any other person. Nonetheless, counsel argued in closing that petitioner’s alleged misconduct must have harmed thousands of other smokers – three or four percent of all smokers in Oregon. The jury’s award of punitive damages seemed to have been based upon those unsupported claims. Perhaps more disturbing, these assertions by Plaintiff’s counsel appear to be the principle support for the award as affirmed by the Oregon Supreme Court.
As the result of post-trial motions, the trial court reduced the punitive damages award to $32 million, on the ground that the jury’s award was excessive under the United States Constitution, and reduced the award of noneconomic damages to $500,000 in accordance with O.R.S. § 18.560(1). On appeal, the Oregon Court of Appeals reversed and remanded with instructions to enter judgment on jury verdict. The Oregon Supreme Court denied review. The U.S. Supreme Court granted Phillip Morris’s petition for a writ of certiorari, vacated the judgment, and remanded to the Oregon Court of Appeals for reconsideration in light of State Farm Mutual Automobile Insurance Co. v. Campbell. It would appear from the subsequent decisions of the Oregon Court of Appeals and the Oregon Supreme Court that the light from that decision burns dimly at best in Oregon.
Despite clear direction from the U.S. Supreme Court, the Oregon Court of Appeals reaffirmed its prior ruling and held that, under the guidance provided by Campbell, the award was not excessive. The Oregon Supreme Court affirmed. In its holding, the Oregon Supreme Court took pains to tie its analysis to Oregon cases and the interests of Oregon citizens as the Court perceived them. From the beginning of the opinion, it seems clear that the Oregon Supreme Court had no intention of disturbing the jury’s verdict whatever the U.S. Supreme Court may have said in Campbell.
The Oregon Supreme Court began its analysis of the requirements of due process issue by citing to its own decision in Parrott v. Carr Chevrolet, Inc. According to the Oregon Court, in a review of a punitive damage award under the Due Process Clause of the Fourteenth Amendment, a court must determine whether the punitive damage award is “grossly excessive.” The Court then lists the five factors that it had identified in Parrot to determine whether a punitive damage award is grossly excessive:
Having reminded everyone of its own prior contribution to case law on the issue, the Oregon Supreme Court was constrained to admit that “Parrott has been superseded somewhat by Campbell, but the last three Parrott factors are, of course, the Gore guideposts as they have been further elucidated by Campbell.” The Court then stated it would consider only those guideposts in its analysis. What followed however appears to be a reinterpretation of the Campbell decision in light of the Oregon Supreme Court’s views on punitive damages.
The Court addressed the first guidepost; the degree to which the Defendant’s conduct was reprehensible. That analysis involves consideration of whether (1) the harm caused was physical as opposed to economic, (2) the tortuous conduct evinced an indifference to or a reckless disregard of the health or safety of others (3) the target of the conduct had financial vulnerability (4) the conduct involved repeated actions or was an isolated incident, and (5) the harm was the result of intentional malice, trickery, or deceit, or mere accident. Using these factors, the Court found that there could be no dispute that Philip Morris’s conduct was “extraordinarily reprehensible.”
The most significant aspect of the Oregon Court’s analysis involved its conviction that, in assessing the reprehensibility of Philip Morris’s actions, the jury could properly consider evidence of similar harm to other Oregonians caused (or threatened) by the Defendant’s conduct. According to the Court, “Philip Morris’s fraudulent scheme would have kept many Oregonians smoking past the point when they would otherwise have quit. Some of those smokers would eventually become ill; some would die. Philip Morris’s deceit thus would, naturally and inevitably, lead to significant injury or death.”
On appeal to the Oregon Supreme Court, the Defendant had attacked the jury’s reliance on presumed fraud to others on two grounds. First, Phillip Morris argued that the Supreme Court in Campbell had rejected the use of such testimony regarding injury to others as a basis for punitive damages and second, perhaps more importantly, that the Plaintiff had presented no evidence that any other person had been deceived as the Plaintiff had asserted Mr. Williams had been deceived. The Oregon Court rejected both arguments.
The Oregon Court distinguished the type of evidence rejected in Campbell because it had related to dissimilar acts outside the state. In this case, the Court found that the presumed injury to other Oregonians involved precisely the same fraud, in Oregon, that had resulted in the Plaintiff’s death. Thus, reasoned the Oregon Court, the U.S. Supreme Court’s decision in Campbell did not bar the jury’s punishment of Phillip Morris for the impact of it’s behavior on persons other than the Plaintiffs.
The Court also rejected the assertion that there was nothing in the record to support the Court of Appeals’ assumption that any Oregon smoker other than Williams smoked and sustained injuries in reliance on the alleged fraud. The Court held:
In essence, Philip Morris is claiming that one cannot reasonably infer that anyone was actually fooled by its 40Remanded In Light Of State Farm V. Campbell: The Opportunity For Further Illumination Presented By Williams V. Philip Morris Incyear advertising campaign directed to thousands of Oregonians. Yet even the simplest assessment of human nature, viewed in light of the designedly addictive properties of cigarettes, tells any reasonable person that those lies would have been very persuasive. We think that such an appreciation of human nature fairly may be attributed to jurors, including the ones who heard this case. Moreover, Philip Morris’s own conduct belies its protestations. As a for-profit corporation, it would not spend over 40 years of time, effort, and money to deceive people, unless it thought it was succeeding.
Having disposed of Defendant’s objections to the consideration of injury to others as a basis for an award punitive damages to the Plaintiff, the Oregon Court went further to expand its class of injured Oregonians to those who merely risked harm by smoking. According to the Court “Although it weighs less in our analysis, we also note that Philip Morris harmed a much broader class of Oregonians. Every smoker tricked by its scheme, even those who never got ill, kept buying cigarettes-taking money out of their pockets and putting it into the hands of Philip Morris and other tobacco companies. And every one of those smokers risked serious illness or death for as long as they remained deceived.”
The Court’s summing up reveals how significant it believes the harm (or potential harm) to others figured in its analysis of the first Gore (or fourth Parrot) factor:
Of the five reprehensibility factors listed in Gore and recited-if not precisely used-in Campbell, four certainly are met here. The harm to Williams was physical-lung cancer cost Williams his life. Philip Morris showed indifference to and reckless disregard for the safety not just of Williams, but of countless other Oregonians, when it knowingly spread false or misleading information to keep smokers smoking. Philip Morris’s actions were no isolated incident, but a carefully calculated program spanning decades. And Philip Morris’s wrongdoing certainly involved trickery and deceit. We conclude, then, that the first Gore guidepost favors a very significant punitive damage award.
The Oregon Supreme Court then addressed the third, “comparable sanctions” guidepost. In doing so however, the Oregon Court declares that the Defendant is actually guilty of manslaughter. According to the Oregon Supreme Court, as Phillip Morris is factually guilty of the criminal offense of manslaughter, it should have anticipated a significant punitive damage award in it’s civil trial for fraud.
The Court begins by dismissing the analysis of the Oregon Court of Appeals in Williams I. In that decision, and its reprise in 2004, the Court of Appeals suggested that the comparable sanctions guidepost did not play a major role in the analysis of punitive damages in the case as Oregon law does not provide administrative or other civil sanctions for civil fraud. Plaintiff had argued that the most analogous statutory sanctions were the criminal penalties for first-degree manslaughter and second-degree manslaughter. The Appeals Court properly rejected that comparison, noting that it is difficult to compare the criminal sentences available under the manslaughter statutes with the economic sanction of punitive damages, particularly when the defendant is a corporation.
In lieu of any comparable civil sanction, the Oregon Court of Appeals looked elsewhere for notice to the Defendant. The Court held that, to the extent that the third Gore guidepost is intended to ensure that the Defendant received adequate notice, the established Oregon law of punitive damages, including Oregon’s statute establishing criteria for the award of punitive damages, was sufficient to alert the Defendant to the possible punishment for its “fraudulent scheme.” The fact that the statute provides no measure for sanctions and does little more that list the factors that might be used as the basis for the decision to impose punitive damages, seemed to escape the Oregon Court of Appeals.
While the Court of Appeals holding on this guidepost was dubious at best, it seems positively scholarly when compared with the “analysis” of the Oregon Supreme Court. The Oregon Supreme Court holds that the application of the comparable sanctions guidepost requires three steps of its own creation. According to the Court, the identification of comparable civil or criminal sanctions is merely the first step. After that is done, the courts, at least in Oregon, must consider how serious the comparable sanctions are, “relative to the universe of sanctions that the legislature authorizes to punish inappropriate conduct.” Having taken steps one and two, the courts must then evaluate the punitive damage award in light of the relative severity of the comparable sanctions. The function of the second, “universe of sanctions” step, is at best unclear.
In the end, the Oregon Supreme Court simply adopts the very argument of Plaintiff’s counsel that was rejected by the lower court. The Court holds that the most analogous offense is not fraud, the civil offense found by the jury, but second degree manslaughter, a class B felony in Oregon. In doing so, the Oregon Supreme Court disregards the specific caution of the U.S. Supreme Court in Campbell against the use of criminal penalties as an accurate measure of foreseeable punitive sanctions. The Court in Campbell noted:
The third guidepost in Gore is the disparity between the punitive damages award and the “civil penalties authorized or imposed in comparable cases.” Id. at 575, 116 S.Ct. 1589. We note that, in the past, we have also looked to criminal penalties that could be imposed. Id. at 583, 116 S.Ct. 1589; Haslip, 499 U.S. at 23, 111 S.Ct. 1032. The existence of a criminal penalty does have bearing on the seriousness with which a State views the wrongful action. When used to determine the dollar amount of the award, however, the criminal penalty has less utility.
The Oregon Supreme Court notes this warning but hastens to asserts its own conviction that the facts presented at the Defendant’s civil trial for fraud establish that Phillip Morris is actually guilty of manslaughter. The Court holds:
That admonition is important, of course. But the basis for holding that Philip Morris’s actions in this case compare to a familiar crime is not speculative or remote. Viewing the facts in the light most favorable to plaintiff, Philip Morris’s actions, under the criminal statutes in place at the beginning of its scheme in 1954, would have constituted manslaughter. See O.R.S. § 163.040 (1953). Today, its actions would constitute at least second-degree manslaughter, a Class B felony.
Thus the Oregon Supreme Court does precisely what the U.S. Supreme Court in Gore warned civil courts not to do. It finds the civil Defendant guilty of a criminal offense without the benefit of any of the protections of the criminal process and then asserts that the award of punitive damages should be upheld on the basis of it’s finding that a serious crime has been committed. Returning from the criminal bench to the Gore guidepost, the Oregon Supreme Court finds that the possibility of severe criminal sanctions, both for any individual who participated in such a crime and for the corporation generally, put Philip Morris on notice that Oregon would take such conduct very seriously. The Court then finds that the third Gore guidepost, like the first, supports a very significant punitive damage award.
The question posed the U.S. Supreme Court in Gore was whether the pertinent statutes or interpretive decisions would have put an out-of-state distributor on notice that it might be subject to a multimillion dollar sanction. Oregon Supreme Court appears to base its approval of the punitive damage award on its finding that this civil defendant was knowingly guilty of manslaughter rather than fraud. The Oregon Supreme Court then insists that Phillip Morris should therefore have known that it’s knowing commission of manslaughter subjected it to a significant punitive damage award in a civil trial for fraud.
While the Oregon Supreme Court exercised considerable creativity in its discussion of the comparable sanctions guidepost, it was constrained to admit the second Gore guidepost, the ratio between the compensatory and punitive damage awards, was not met. As the U.S. Supreme Court held in Gore, the Defendant’s punishment must be reasonable and proportionate to the amount of harm to the plaintiff and to the general damages actually recovered. The Oregon Supreme Court acknowledged that all arguable versions of the ratios substantially exceed the single-digit ratio (9:1) that the U.S. Supreme Court has said ordinarily will apply in the usual case.
Despite this acknowledgment, the Oregon Supreme Court feels compelled to assert that only chance saved Philip Morris from a much higher compensatory damage award. The Court speculates on what such damages might have been had the facts been completely different. The Court suggests that Plaintiff’s relatively small economic damages for Williams’s “wrongful death,” could have ballooned ten times had the Plaintiff not died so quickly.
While interesting, the Court’s novel observation ignores two facts. First, had the Plaintiff been treated rather than succumbing to his illness, the Court’s insistence that Phillip Morris was actually guilty of manslaughter, would have fallen away. Second, even if a Court were entitled to substitute speculative compensatory damages for the actual award, the punitive damage award would still have been a constitutionally infirm seventy five times the speculative award of compensatory damages envisioned by the Court.
It is at this point the Oregon Supreme Court departs from the rule of law as enunciated by the U.S. Supreme Court in Gore. The Court is constrained to admit that only two of the three Gore guideposts support a very significant punitive damage award and that the ratio guidepost “cuts the other way.” Oregon Supreme Court then asserts that “In the end, we are left to use those competitive tools to assess whether the jury’s punitive damage award was not ‘grossly excessive’ and therefore should be reinstated.” The Oregon Supreme Court then finds that the jury’s $79.5 million punitive damage award against Philip Morris comports with due process and affirms the decision of the Oregon Court of Appeals.
To support this finding, the Court finds that the defendant’s conduct put a significant number of victims at profound risk for an extended period of time. It then returns to its conviction that Phillip Morris was actually guilty of manslaughter and finds that the State of Oregon treats such conduct as grounds for a severe criminal sanction. As a result of this analysis, the Oregon Supreme Court asserts that Philip Morris’s conduct was “extraordinarily reprehensible.” The Court argues that the punitive damage award is proper and necessary to deter the Defendant as even the State’s criminal sanctions for manslaughter did not dissuade Philip Morris from pursuing its “scheme.”
With all due respect to the emotional findings of the Oregon Supreme Court, the Court’s application of Gore misperceives the very function of the Gore guideposts. Those guideposts are not, in any sense, competitive measures of the constitutionality of a punitive damage award. Instead, the reprehensibility guidepost is to be used to determine whether any punitive damage award is valid in a particular case. As the Court in Gore held:
It should be presumed a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages should only be awarded if the defendant’s culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence.
Thus, it is not sufficient to find that the Defendant’s behavior is reprehensible. Instead, the jury must find that is “so reprehensible” that punitive damages are appropriate to achieve punishment or deterrence. Once this first guidepost is met, a reviewing court must look to the other two guideposts to determine whether the amount of the punitive damage award passes constitutional muster.
The comparable sanctions guidepost is designed to address that essential aspect of due process: notice. The analysis of comparable sanctions operates as a test of whether a Defendant should have been on notice that it’s conduct would subject it to punitive sanctions. Civil sanctions for such behavior are seen as a incontrovertible measure of such notice. If similar behavior has been identified by the state as warranting severe civil penalties, the Defendant cannot claim that they were unaware of the potential risk that their behavior might result in a severe penalty. Conversely, the absence of any such civil penalties suggests that a large punitive damage award for that behavior should be seen as unexpected, arbitrary and capricious.
It is this constitutional requirement for some measure of notice that underpins the Gore Court’s rejection of the use of criminal sanctions. By definition, a Defendant who has not been charged with a criminal offense and, perhaps more importantly, has been deprived of the procedural protections of the criminal system, should not be “punished” based upon Plaintiff’s counsel’s assertion that the Defendant has actually committed a serious crime. It seems clear that when the measure of punitive damages in a civil case is based upon a determination that the Defendant is actually guilty of a theretofore unnamed crime, such an award violates basic constitutional principles.
Finally, the ratio guidepost is intended to serve as a final, objective measure of a punitive damage award. While it is clear that the constitutional line is not marked by a simple mathematical formula, the U.S. Supreme Court was clear that there are identifiable limits to punitive damages. As the Court in Campbell held:
We decline again to impose a bright-line ratio which a punitive damages award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. In Haslip, in upholding a punitive damages award, we concluded that an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety.
The Court further advised:
Nonetheless, because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where “a particularly egregious act has resulted in only a small amount of economic damages.” Ibid.; see also ibid. (positing that a higher ratio might be necessary where “the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine”). The converse is also true, however. When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.
In Campbell, the U.S. Supreme Court instructs courts reviewing punitive damage awards that a finding of reprehensibility, even severe reprehensibility, is not a license to ignore the Court’s guidance concerning the limits of constitutional awards. Instead, a finding of reprehensibility is a basic prerequisite to any award of punitive damages. Clearly, Campbell provides that severe reprehensibility can result is a significant award. However, such a finding does not set aside the Court’s admonition that few awards exceeding a single-digit ratio between punitive and compensatory damages, will satisfy due process.
It is also important to note that the Plaintiff in Williams received a substantial compensatory damage award, in excess of $800,000. Adhering to the direction of the U.S. Supreme Court in Campbell, a lesser ratio, perhaps only equal to compensatory damages, might have reached the outermost limit of due process. Even if one were to ignore this portion of the Supreme Court’s guidance, the 97 to 1 ratio approved by the Oregon Supreme Court greatly exceeds any measure of due process.
The Supreme Court’s grant of Certiorari identifies the issues to be examined on appeal from the Oregon Supreme Court. Those questions are:
1. Whether the Oregon courts deprived Philip Morris of due process by permitting the jury to punish Philip Morris for harms to non-parties.
(i) the jury could have found the defendant’s conduct to be highly reprehensible and
(ii) the conduct could come within the statutory definition of a crime.
As to the first question, the answer appears to yes, but only on a factual basis. In Campbell, the U.S. Supreme Court made it clear that considerations of the impact of Defendant’s conduct on persons other than the Plaintiff can be analyzed in the context of the reprehensibility guidepost. However, the Court also makes it clear that in reviewing an award based upon such assertions, the Court will look to the evidence that was presented to establish harm to others in the state.
In Williams, the Oregon Supreme Court substitutes conjecture for facts. In place of the trial testimony as to the impact on others required by Campbell, the Oregon Court asserts that Phillip Morris must have deceived and injured others in the state because “[a]s a for-profit corporation, it would not spend over 40 years of time, effort, and money to deceive people, unless it thought it was succeeding.” It is precisely this type of unsupported speculation that was condemned by the Campbell Court:
Due process does not permit courts, in the calculation of punitive damages, to adjudicate the merits of other parties’ hypothetical claims against a defendant under the guise of the reprehensibility analysis…
Contrary to the direction in Campbell, the Oregon Supreme Court wrongfully asserts that such harm to others can be presumed and a punitive damage award ninety seven times the measure of a significant compensatory damage award can be based upon that presumption. Unless the U.S. Supreme Court intends to radically change the basis for punitive damage awards, this award, which the Oregon Supreme Court admitted was substantially based upon presumed damage to others, must be reversed.
A fair reading of Gore indicates that the second question on review will be answered in the negative. Certainly the degree of reprehensibility will be important in determining whether punitive damages are warranted and the likely scope of such an award. However, the U.S. Supreme Court’s guidance in Campbell makes it clear that characterizing the Defendant’s conduct as “highly reprehensible” does not give a jury or the reviewing Court a license to vent their respective spleens with an award of stratospheric damages.
Similarly, it seems clear that neither the jury nor the reviewing court is entitled to base an extreme award on an adhoc comparison of Defendant’s conduct with the elements of potential criminal offenses. In Williams, the Oregon Supreme Court actually holds, as a matter of law, that the defendant’s actions would constitute at least second-degree manslaughter. The Oregon Supreme Court reveals that it was not engaged in a simple search for comparative penalties. Instead it found that the civil defendant was guilty of a crime, and based its approval of the punitive damage award on that “conviction.” This it cannot do. As the Court in Gore admonished:
Great care must be taken to avoid use of the civil process to assess criminal penalties that can be imposed only after the heightened protections of a criminal trial have been observed, including, of course, its higher standards of proof. Punitive damages are not a substitute for the criminal process, and the remote possibility of a criminal sanction does not automatically sustain a punitive damages award.
While the U.S. Supreme Court will almost certainly reverse the punitive damage award approved by the Oregon Supreme Court in Williams, it remains to be seen whether the Court will take the opportunity to shed more light on the due process limits of punitive damages. At a minimum, Williams presents an opportunity for the court to provide much needed clarification concerning the Gore guideposts.
The Court should make it clear that a finding of reprehensible behavior is not a license for an unlimited award. Instead, such a finding is merely the basic threshold for any award of punitive damages. Comparative civil sanctions provide some objective measure of whether an award of punitive damages will fall within the parameters of sanctions that the defendant should have anticipated.
Finally, the degree of reprehensibility can and should be used to gauge the scope of punitive damages, but those damages must still fall within the ratios provided by the Court. In Haslip, the Court concluded that an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety. Following Haslip, the Court in Campbell warned that few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. Finally, the Campbell Court advised that when compensatory damages are substantial, a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.
For whatever reason, emotional or parochial, this seemingly clear guidance was too “vague” for the Oregon Supreme Court. It appears to be time for the U.S. Supreme Court to make things even simpler to enable some courts to follow. As the Williams case shows us, without such additional guidance, the words “judgment vacated, and case remanded for further consideration in light of Campbell” will result in little more than further excess.
When you determine the amount of money to award in punitive damages against Philip Morris . . . [i]t’s fair to think about how many other Jesse Williams in the last 40 years in the State of Oregon *4 there have been. It’s more than fair to think about how many more are out there in the future.* * *
In Oregon, how many people do we see outside, driving home, coming to work, over the lunch hour smoking cigarettes? For every hundred, cigarettes that they smoke are going to kill ten through lung cancer. And of those ten, four of them, or three of them I should say, because the market share of Marlboros is one-third.
O.R.S. § 30.925 Punitive damages.
- The likelihood at the time that serious harm would arise from the defendant’s misconduct;
- The degree of the defendant’s awareness of that likelihood;
- The profitability of the defendant’s misconduct;
- The duration of the misconduct and any concealment of it;
- The attitude and conduct of the defendant upon discovery of the misconduct;
- The financial condition of the defendant; and
- The total deterrent effect of other punishment imposed upon the defendant as a result of the misconduct, including, but not limited to, punitive damage awards to persons in situations similar to the claimant’s and the severity of criminal penalties to which the defendant has been or may be subjected.