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Where were Roberts and Alito?

By Robert S. Sargent, Jr.
web posted March 5, 2007

Justices toss $79.5M award to smoker's widow.  (USA Today)

Nothing chaps a conservative's behind more than smokers who don't take personal responsibility for their addiction, and juries who award outrageous punitive damages.  At first glance, the headlines above look like a breath of fresh air, but, as always, go to the source.

The lawsuit is Philip Morris USA v. Williams, decided by the US Supreme Court on February 20, 2007.  An Oregon jury found that Philip Morris led Jesse Williams to believe that smoking was safe.  It awarded the Williams estate $821,000 in compensatory damages and $79.5 million in punitive damages.  The summary of this case said, "The [Oregon] State Supreme Court rejected Philip Morris' arguments that the trial court should have instructed the jury that it could not punish Philip Morris for injury to persons not before the court, and that the roughly 100-to-1 ratio the $79.5 million award bore the compensatory damages amount indicated a ‘grossly excessive' punitive award."   The US Supreme Court did not consider the question of whether the award was "grossly excessive," but addressed only the procedural issue of whether a state may use punitive damages to punish a defendant "for injury inflicted on strangers to the litigation."  (Justice Stephen Breyer wrote the majority opinion, and was joined by Justices Roberts, Kennedy, Souter, and Alito.)

Phillip Morris argued that the huge punitive damages were awarded because the jury considered that Phillip Morris not only did injury to Jesse Williams, but to countless other smokers, and that the judge should have instructed the jury that it could not make such a consideration.  "The [Oregon] court rejected that claim," wrote Breyer.  "In doing so, it pointed out…that this Court [US Supreme Court] in State Farm had held only that a jury could not base its award upon ‘dissimilar' acts of a defendant…The Oregon court's…statement is correct.  We did not previously hold explicitly that a jury may not punish for the harm caused others.  But we do so hold now."  (My emphasis.)  In other words, The US Supreme Court sided with Phillip Morris thereby voiding the award to the smoker's widow, and, in the process, created a brand new limitation on jurors when considering the harm a company causes people not part of the litigation.

In Justice Stevens' dissent (Justice Thomas and Ginsburg also wrote dissents, and Ginsburg's dissent was joined by Thomas and Scalia), regarding how to assess punitive damages, he gives an example:  "A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim."  Therefore, "…the harm to third parties would surely be a relevant factor to consider in evaluating the reprehensibility of the defendant's wrongdoing.  We have never held otherwise."  And, hold the presses!  In a neat, conservative dressing down of the majority, Stevens wrote:  "Judicial restraint counsels us to ‘exercise the utmost care whenever we are asked to break new ground in this field.'   Today the majority ignores that sound advice when it announces its new rule of substantive law."  Way to go John Paul!

In his separate dissent, Justice Thomas quoted his brother on the Court, Antonin Scalia:  "In 1868…punitive damages were undoubtedly an established part of the American common law of torts.  It is…clear that no particular procedures were deemed necessary to circumscribe a jury's discretion regarding the award of such damages, or their amount."  In other words, the procedural issue is a brand new issue made up by Breyer.  And, as we see in the quote from paragraph three, he admits it.

While I wish that legislatures would write laws limiting these excessive damages, I also believe, as all conservatives do, that it is not up to the Court to change the laws.  And while it is not necessarily depressing that we witness Justice Breyer making up the rules as he goes along, (after all, we have come to expect it), the following question is depressing:  What the heck are our new conservative darlings Roberts and Alito doing joining this majority?  ESR

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at rssjr@citcom.net.

 

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