One of the most interesting decisions of this term was handed down just a few weeks ago in the case of Philip Morris v. Williams. Following the death of Jesse Williams, his estate filed suit against Philip Morris for deceiving Williams into believing cigarettes were safe. The Jury awarded $821,000 in compensatory damages and $79.5 million in punitive damages. Philip Morris appealed to the Oregon Court of Appeals on the grounds that the jury had punished them for injuries to people not apparent before the court and that the punitive fine was excessive. The State Supreme Court rejected these arguments.
The central issue in this case is a jury’s ability to punish a defendant for harm done to people not before the court. During the trial, the attorney for Williams had asked the jury to “think about how many other Jesse Williams in the last 40 years in the State of Oregon there have been. . . . In Oregon, how many people do we see outside, driving home . . . smoking cigarettes? . . . [C]igarettes . . . are going to kill ten [of every hundred]. [And] the market share of Marlboros [i.e., Philip Morris] is one-third [i.e., one of every three killed].” Philip Morris also argued that the roughly 100-to-1 ratio of compensatory damages to punitive damages was “grossly excessive”.
The Court was split 5-4 with the Chief Justice and Justices Breyer, Kennedy, Souter, and Alito ruling that punishing a litigant for injury to those not before the court was an unconstitutional taking of property without adequate due process. Justices Scalia, Thomas, Ginsburg and Stevens dissented.
The majority opinion, written by Justice Breyer, first clarifies that the Court “granted certiorari limited to these two questions [about due process and the grossly excessive fine]” but that it will only consider the due process argument in its ruling. He explains at the end of his opinion that ruling on the fine would be inadvisable since this case is remanded to a lower court for a retrial. He reminds the reader that the Court has long held that punitive damages are a valid vessel for advancing the state’s interest in preventing future crime but must also not be so excessive as to become and “arbitrary punishment.” These distinctions are important, but the Court will not define this issue any further in this case.
Breyer then gets to the core of this case- whether or not punitive damages can be a function of injury done to non-litigants. First, the Constitution guarantees the defendant the right to every possible defense, a right that would be would abridged for obvious reasons if non-litigants were considered in damages. Next, the Court argues that the consideration of non-litigants would add a “standardless dimension” to punitive damages since there are theoretically a nearly infinite number of individuals who are affected to some degree by the decision of any major company.
Up to this point, the Court’s ruling hardly seems contentious. The majority’s next argument follows:
Respondent argues that she is free to show harm to other victims because it is relevant to a different part of the punitive damages constitutional equation, namely, reprehensibility. That is to say, harm to others shows more reprehensible conduct. Philip Morris, in turn, does not deny that a plaintiff may show harm to others in order to demonstrate reprehensibility. Nor do we. Evidence of actual harm to nonparties can help to show that the con- duct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible—… Yet for the reasons given above, 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 nonparties.
The Court rules that a jury may consider non-litigants in determining the reprehensibility of a crime, but they may not directly punish the defendant for injuries sustained by those parties.
The dissenting opinions in this case came as quite as quite a surprise. Oddly enough, the four Justices who are normally considered to be on the farthest ends of the ideological spectrum came full circle to be on the same side of this case. Justices Stevens and Thomas filed their own opinions and Justices Scalia and Thomas joined on Justice Ginsburg’s opinion.
Justice Stevens argues that punitive damages are, by definition, designed to punish for crimes committed against society.
Justice Thomas files a one page dissent in order to “reiterate [his] view that the Constitution does not constrain the size of punitive damages awards.”[internal quotation marks omitted.] In his brief opinion, Thomas cites quotations from three opinions, two of which are either himself or Justice Scalia writing, the other of which is a quotation from another case in which he is quoting himself.
Justice Ginsburg’s argues in her opinion that the majority can provide no evidence that the jury in the trial had based their award on punishing Philip Morris instead of considering reprehensibility.
I tend to agree with the majority in concept and the minority (specifically Justice Ginsburg) in method. Punitive damages, while designed to punish, would be almost limitless if non-litigants could be considered when they are awarded. The idea that a jury should look to external actors in order to determine the reprehensibility [and therefore the monetary equivalent] of certain conduct but not directly punish a defendant for the crime seems like an impractically fine line for juries, and judges to follow. The Court’s position on punitive damages has always been vague and distorted at best, and this latest ruling does little to clarify the Court’s stance.
On an semi-unrelated note, I recently heard a recording of Chief Justice John Robert’s very funny 2006 Georgetown Law School Commencement Address. The best joke he made that day: “I don’t tell lawyer jokes anymore because it turns out the lawyers in the audience don’t think they’re very funny and the non-lawyers don’t think they’re jokes.” You can subscribe to the Georgetown Law Center Podcast through iTunes here or you can download the speech itself here.