Amicus Curiae Brief — State Farm Mut. Automobile Ins. Co. v. Campbell

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No. 01-1289

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IN THE

Supreme Court of the United States

STATE FARM MUTUAL AUTOMOBILE INSURANCE Co.,

Petitioner,

Vv.

CURTIS B. CAMPBELL AND INEZ PREECE CAMPBELL,

Respondents.

On Writ Of Certiorari to the

Supreme Court of Utah

AMICUS CURIAE BRIEF OF THE

ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF THE RESPONDENTS

MARY E. ALEXANDER JEFFREY ROBERT WHITE*

1050 31st St., N.W 1050 31st. St., N.W.

Washington, DC 20007. Washington, DC 20007

(202) 965-3500 (202) 965-3500

President, * Counsel of Record

The Association of Attorney for Amicus Curiae

Trial Lawyers of America

BEST AVAILABLE COPY)

—_—

TABLE OF CONTENTS

TABLE OF AUTHORITIES - hii

IDENTITY ANDINTEREST OF AMICUS CURIAE........1

SUMMARY OF THE ARGUMENT sccccecsecsecseceee &

ARGUMENT 0 eccnscsesseees evcceccccecsecoeee D

I. THIS COURT SHOULD OVERRULE ITS PRIOR

HOLDING THAT THE DUE PROCESS CLAUSE

PLACES SUBSTANTIVE LIMITS ON PUNITIVE

DAMAGE AWARDS. ..... - —

A. Substantive Due Process Review of

Punitive Damage Awards Lacks Support

in the Constitutional Text, Historical

Practice and this Court’s Precedent. .............. 4

B. Substantive Due Process Review Adds

Little to Judicial Safeguards Against

Excessive Awards Already Provided By

Common Law. : 7 sesessessesceee AD

C. To The Extent The Eighth Amendment

Applies To Excessive Punitive Awards,

Substantive Due Process Is Inapplicable... 15

D. Substantive Due Process Intrudes Upon

Matters Of State Law And Policy Which

Are Best Left To State Courts And

Legislatures. ............ secescene : 16

ll

Il. PROCEDURAL DUE PROCESS PROHIBITS

COURTS FROM EXCLUDING EVIDENCE AND

REFUSING CLEAR JURY INSTRUCTIONS ON

ISSUES RELEVANT TO THE APPROPRIATE

AMOUNT OF PUNITIVE DAMAGES. 19

A. Proper Jury Instructions Are Key to

Preventing Arbitrary or Biased Verdicts.... 19

B. Juries Are Competent to Render Fair

Verdicts When Properly Instructed........... 23

CONCLUSION 28

iii

TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000) .........-00s0+ 23

Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71 (1988)21

BMW of North America, Inc. v. Gore, 517 U.S. 559

Ee passim

Bowers v. Hardwick, 478 U.S. 186 (1986) .........ccccceeeeeees Y

Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal,

BBB, GES UD. TIT (RGGD) nceccceccccccscscoccsccccsvecscscecceees 15, 20

Cheevers v. Clark, 449 S.E.2d 528 (Ga. App. 1994)........22

Collins v. City of Harker Heights, 503 U.S. 115 (1992)4, 11

Cooper Industries, Inc., v. Leatherman Tool Group, Inc., 532

ee 15

County of Sacramento v. Lewis, 523 U.S. 833 (1998) .. 8, 11,

16

Daniels v. Williams, 474 U.S. 327 (1986)...........c000000 8,11

DeShaney v. Winnebago County D.S.S., 489 U.S. 189

Isaiah ieinrterccttectneneeencsnenneasnenetneesencencessecess 8

Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)23

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). .........4.. 4

Ferguson v. Skrupa, 372 U.S. 726 (1963) .......ccccscesereeeees 10

Graham v. Connor, 490 U.S. 386 (1989) ........ccccccccceeeeeeees 16

Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 174

SE aT Dacccicnsoncnssccccnscnnsscnsecscecscenseeecessscneet 18

Honda Motor Co. v. Oberg, 512 U.S. 415 (1994)....... 12, 20

Lochner v. New York, 198 U.S. 45 (1905) .........cccccccceseeeeees 9

iv

Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir.

| 22

McKlesky v. Kemp, 481 U.S. 279 (1987) .......-ecesesereeneees 23

Missouri Pacific Ry. v. Humes, 115 U.S. 512(1885)...4, 13

Moore v. City of East Cleveland, 431 U.S. 494 (1977).....10

Murray’s Lessee v. Hoboken Land & Improvement Co., 18

How. 272, 15 L.Ed. 372 (1856).....-.-.-cceceseserseeensnenenenees 12

Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483

he. 2GDD) ccccccscsccssesscscsssscssesssninesenesnesssensssessssnssnensseninees 22

Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1

|, | ee passim

Parklane Hoisery Co. v. Shore, 439 U.S. 322 (1979) ....8, 23

Paul v. Davis, 424 U.S. 693, 701 (1976) .........-ccereeees 10, 14

Ring v. Arizona, 122 S.Ct. 2428 (2002) .........:seserereeeneees 23

Romo v. Ford Motor Co., 99 Cal. App. 4th 1115, 122

Cal. Retr.2d 139 (2002) .........ceorccscsecscsceesecenecsnseecessecoes 18

Seaboard Air Line R. Co. v. Seegers, 207 U.S. 73 (1907)5, 8

Southwestern Telegraph & Telephone Co. v. Danaher, 238

UB. GBB (IGEGD cccrcccsncscccsesecesscersesesnssesenscremasnesmenennsssasenes 7

St. Louis, I.M. & S.R. Co. v. Williams, 251 U.S. 63

|, 6,8

Standard Oil Co. of Ind. v. Missouri, 224 U.S. 270 (1912) 6

Tuttle v. Raymond, 494 A.2d 1353 (Me. 1985)...........++. 22

TXO Production Corp. v. Alliance Resources Corp., 509

US, 46S (BGDG) accrcccreccseeccsescssesesssnssesssssssssssssneseseed passim

Washington v. Glucksberg, 521 U.S. 702 (1997).......... 4,11

Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909)........... 7

West Coast Hotel Co. v. Parish, 300 U.S. 379 (1937).......10

Vv

Whitley v. Albers, 475 U.S. 312, 327 (1986) .......--csvess00 16

PN seresedcenbanricnsestneninenenasentenatenenenasensastnaninsensseesnemenenast 8

Williamson v. Lee Optical, 348 U.S. 483, 488 (1955).......10

STATUTES

a passim

Ore. Rev. Stat. § 30.925(3)(g) (1991) FE 22

Utah Code Ann. § 78-18-1(1)(D) .....2...ccccccceseseseseeneeenenees 16

Utah Code Ann. 31A-26-301 et S09. .....-.vesssseesssuesssveeesees 18

Utah Code Ann. 76-10-1602(4) ......:ssessssssesesseesseneeneenes 18

a 18

OTHER AUTHORITIES

Joe S. Cecil, Valerie P. Hans, and Elizabeth C. Wiggins,

Citizen Comprehension of Difficult Issues: Lessons from

Civil Jury Trials, 40 Am. U. L. Rev. 728 (1991)......... 25

John Hart Ely, DEMOCRACY AND DISTRUST (1980) ....... 4

John Guinther, THE JURY IN AMERICA (1988)............... 24

Oliver W. Holmes, COLLECTED LEGAL PAPERS (1920) .24

Charles Jared Knight State-Law Punitive Damage Schemes

And The Seventh Amendment Right To Jury Trial In The

Federal Courts, 14 Rev. of Litig. 657 (1995)............... 23

Michael J. Phillips, Another Look at Economic Substantive

Due Process, 1987 Wis. L. Rev. 265 .......cc.cccsesecsesseeees 10

Richard A. Posner, OVERCOMING LAW (1995)............. 10

Richard A. Posner, THE FEDERAL COURTS: CRISIS AND

| EE ee ae NE 10

William H. Rehnquist, THE SUPREME COURT: How IT

ey ee Oe PT Pecnccccscncsersemnentunsentecescemenesmmianees 10

eee eee

}

vi

Michael L. Rustad, Unraveling Punitive Damages: Current

Data and Further Inquiry, 1998 Wis. L. Rev. 15. ......20

Alan Howard Scheiner, Judicial Assessment of Punitive

Damages, the Seventh Amendment and the Politics of Jury

Power, 91 Colum. L. Rev. 142, 146-56 (1991)..........0+. 8

Cass R. Sunstein, Daniel Kahneman, David Schkade,

Assessing Punitive Damages (With Notes On Cognition

And Valuation In Law), 107 Yale L.J. 2071(1998)......25

No. 01-1229

IN THE

Supreme Court of the United States

STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.,

Petitioner,

Vv.

CURTIS B. CAMPBELL AND INEZ PREECE CAMPBELL,

Respondents.

On Writ Of Certiorari to the

Supreme Court of Utah

AMICUS CURIAE BRIEF OF THE

ASSOCIATION OF TRIAL LAWYERS OF AMERICA

IN SUPPORT OF THE RESPONDENTS

IDENTITY AND INTEREST OF AMICUS CURIAE

The Association of Trial Lawyers of America

[“ATLA”] respectfully submits this brief as amicus

curiae. Letters of consent of the parties to the filing of

amicus briefs have been filed with the Court.!

ATLA is a voluntary national bar association

whose approximately 50,000 trial lawyer members

l Pursuant to Rule 37.6, Amicus discloses that no counsel for

a party authored any part of this brief, nor did any person or entity

other than Amicus Curiae, its members, or its counsel make a

monetary contribution to the preparation or submission of this

brief.

2

primarily represent individual plaintiffs in civil actions.

Some plaintiffs have been harmed by misconduct

deemed so egregious that state law permits juries to

award punitive damages for the purpose of

punishment and deterrence.

In ATLA’s view, the fairness of such awards is

best assured by fair procedures. The proposition that

the amount of punitive damages is additionally limited

by substantive due process is both unwarranted and

unworkable. ATLA members, whose professional lives

are devoted to working with America’s trial courts and

juries, believe that clear and appropriate guidance to

jurors will best enable them to carry out their duty to

assess punitive damages fairly and responsibly.

SUMMARY OF THE ARGUMENT

1. This Court should overrule its prior holding in BMW

of North America, Inc. v. Gore, 517 U.S. 559 (1996), that

substantive due process imposes a limit on the amount

of a punitive damage award arrived at under

procedures that comport with fundamental fairness.

The precedents relied upon by the Court do not

support such a radical expansion of the substantive

component of the Due Process Clause. The Court's

holding disregards the Court’s own considered

reluctance to expand the open-ended reach of

substantive due process and hearkens back to the

discredited Lochner era of judicial activism.

Federal substantive due process review adds

little to the protections against excessive punitive

damage awards already provided by state courts

employing standards developed at common law. To the

extent that the constitutional standard is equivalent to

—

3

common-law excessiveness it merely places this Court

in the position of a Court of Additional Appeals from

state courts. Constitutional review of punitive damages

cannot provide more detailed or precise rules without

abandoning the roots of due process in traditional

practice and appearing to impose the personal

convictions of the majority of the Court.

Federal substantive due process review also

entangles this Court in matters of state law and policy

that are appropriately left to state courts and

legislatures.

2. Protection against arbitrary and excessive punitive

awards is best accomplished by requiring that the

factors that are relevant to assessing an appropriate

amount of damages be submitted to juries,

accompanied by clear and specific instructions. This

Court has long recognized the importance of

appropriate jury instruction in protecting the rights of

litigants.

Properly instructed, juries are clearly capable of

carrying out their duty to assess punitive damages

fairly and responsibly. Empirical studies

overwhelmingly demonstrate that juries make

decisions based on the evidence presented to them,

conscientiously follow the trial court's instructions, and

render verdicts that generally conform to the outcomes

that judges themselves would return. Attacks on the

capacity of juries to carry out their responsibilities

within the law are not supported by objective research.

—

ARGUMENT

I. THIS COURT SHOULD OVERRULE ITS PRIOR

HOLDING THAT THE DUE PROCESS CLAUSE PLACES

+

SUBSTANTIVE LIMITS ON PUNITIVE DAMAGE

AWARDS.

A. Substantive Due Process Review of Punitive

Damage Awards Lacks Support in_ the

Constitutional Text,. Historica! Practice and

this Court’s Precedent.

Not long after the Fourteenth Amendment was

added to our Constitution, this Court upheld a

Missouri penalty statute as well as the long-recognized

authority of juries under the common law to award

“exemplary” damages “whenever malice, gross neglect,

or oppression” accompany wrongful injury. Missouri

Pacific Ry. Co. v. Humes, 115 U.S. 512, 521 (1885). Justice

Field pointedly told petitioners that the Due Process

Clause must not be used as “a means of bringing to the

test of the decision of this court the abstract opinions of

every unsuccessful litigant in a state court of the justice

of the decision against him.” Id. at 520.

The Court has been particularly vigilant against

expansion of the substantive component of the Due

Process Clause, for compelling reasons:

[T]he Court has always been reluctant to expand

the concept of substantive due process because

guideposts for responsible decisionmakers in this

uncharted area are scarce and open-ended. The

doctrine of judicial self-restraint requires us to

exercise the utmost care whenever we are asked to

break new ground in this field.

Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992);

Washington v. Glucksberg, 521 U.S. 702, 720 (1997).2

2 The very phrase “substantive due process” has been called “a

contradiction in terms -- sort of like ‘green pastel redness.” John

Hart Ely, DEMOCRACY AND DISTRUST 18 (1980).

—_

5

Nevertheless, the Court did indeed break new

ground in BMW of North America, Inc. v. Gore, 517 U.S.

559 (1996), overturning for the first time an award of

punitive damages deemed so “grossly excessive” as to

violate the Due Process Clause of the Fourteenth

Amendment. Id. at 562.

ATLA respectfully urges this Court, upon

reconsideration of its precedents, legal traditions, and

in view of its subsequent decisions, to overrule BMW to

_ the extent that it requires courts to enforce substantive

due process limits on the amount of punitive damage

awards imposed using procedures that comport with

fundamental fairness.

The majority opinion in BMW relied on the

proposition, hinted at in Pacific Mutual Life Ins. Co. v.

Haslip, 499 U.S. 1 (1991), and explicitly stated in the

plurality opinion in TXO Production Corp. v. Alliance

Resources Corp., 509 U.S. 443, 453-54 (1993), that “the

Due Process Clause of the Fourteenth Amendment

imposes substantive limits beyond which penalties may

not go.” ‘

The five cases cited in TXO and referenced in

BMW, 517 U.S., at 652, offer scant support for imposing

federal substantive limits on jury awards of punitive

damages under the Due Process Clause.

Seaboard Air Line R. Co. v. Seegers, 207 U.S. 73, 78

(1907), upheld a South Carolina statute imposing a $50

penalty on a common carrier for failing to settle a claim

for a lost shipment valued at $1.75. The statute was not

challenged as a violation of due process, but as a denial

of equal protection, singling out carriers for an

unreasonable penalty not imposed on other debtors. Id.

at 76. The Court upheld the penalty, although it “may

be large as compared with the value of the shipment,”

6

because it served in part “as compensation of the

claimant for the trouble and expense of the suit.” Id. at

77-78.

St. Louis, I.M. & S.R. Co. v. Williams, 251 U.S. 63

(1919) upheld a statutory penalty of $75 plus costs of

suit against the railroad for each of two schoolgirls who

were overcharged in their fares by 66 cents.

Significantly, the court stated that the validity of the

penalty was not to be judged by the ratio of the penalty

to the overcharge. Rather “considered with due regard

for the interests of the public, the numberless

opportunities for committing the offense, and the need

for securing uniform adherence to established

passenger rates, we think it properly cannot be said to

be so severe and oppressive as to be wholly

disproportioned to the offense or abviously

unreasonable.” Id. at 66-67.

Standard Oil Co. of Ind. v. Missouri, 224 U.S. 270,

286 (1912) upheld a penalty under a Missouri anti-trust

statute amounting to $50,000, “which some of the

Missouri court thought should have been a million

dollars.” Id. at 282. The Court pointed out that it is the

responsibility of the state supreme court under the

common law to avoid excessive damages. But there is

no due process review of the amount of damages

imposed by the state court under fair procedures.

The 14th Amendment guarantees that the

defendant shall be given that character of notice

and opportunity to be heard which is essential to

due process of law. When that has been done, the

requirements of the Constitution are met, and it is

not for this court to determine whether there has

been an erroneous construction of statute or

common law.

Id. at 287.

In Southwestern Telegraph & Telephone Co. v.

Danaher, 238 U.S. 482 (1915), the Court set aside a $6,300

penalty imposed under an Arkansas statute against a

telephone company for discriminatory pricing and

service as “plainly arbitrary and oppressive.” However,

the due process violation did not lie in the amount of

the penalty, but in the absence of any intentional or

reckless wrongdoing or departure from any standard

of conduct by the company or any means of testing the

reasonableness of the regulation in court. Id. at 491.

Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909),

upheld $1.6 million in penalties imposed under a Texas

anti-trust statute. “We can only interfere with such

legislation and judicial action of the states enforcing it if

the fines imposed are so grossly excessive as to amount

to a deprivation of property without due process of

law.” The Court found the »enalty not excessive, solely

on the basis of the wealth of the defendant, which

“amounted to more than forty millions of dollars, as

testified by its president.” Id. at 112.

ATLA submits that these decisions provide little

support for the proposition that a punitive damage

awards arrived at under fair procedures may violate

substantive due process.

The objection is not simply that these are

Lochner-era_ cases.> Without exception, the cited

decisions involve statutory penalties. As Justice Souter

3 The fact that the Lochner dissenters voted with the court in these

cases is not surprising. Cf. TXO, 509 U.S., at 455. The Court upheld

the penalty in every case except Danaher, which did not address

excessiveness at all, See BMW, 517 US., at 01 (Scalia, J.,

dissenting).

a De

8

explained in County of Sacramento v. Lewis, 523 U.S. 833

(1998), the Court's substantive due process

jurisprudence has addressed legislation and executive

action, developing a distinct mode of analysis for each.

Id. at 846. The Court has no historical or constitutional

framework for analyzing the substantive due process

claims raised within the judicial branch of government

by civil litigants whose liability for punitive damages

comports with state law and was imposed under

fundamentally fair procedures.

To the extent the precedents reviewed above

support substantive due process limits on statutory

penalties, they do not and should not extend to civil

jury awards. First, the Court was addressing statutory

penalties established in advance without regard to the

circumstances of any particular violation. So, for

example in Williams and Seaboard, the defendants

argued, essentially, that the statutes afforded too little

discretion, i.e., that the penalty was disproportionate as

applied, in view of the relatively small losses suffered

by the specific plaintiffs. Jury awards of punitive

damages, by contrast, are tailored to the circumstances

of each individual case, serving the State’s interest in

“meaningful individualized assessment of appropriate

deterrence and retribution.” Haslip, 499 US., at 20.

Second, the Due Process Clause is, of course,

directed at government action. Daniels v. Williams, 474

U.S. 327, 331-32 (1986); DeShaney v. Winnebago County

D.S.S., 489 U.S. 189 (1989). The jury, however, has

historically served as a shield between the government

and citizens. Parklane Hosiery Co. v. Shore, 439 U.S. 322,

343 (1979) (Rehnquist, C.J., dissenting); Alan Howard

Scheiner, Judicial Assessment of Punitive Damages, the

Seventh Amendment and the Politics of Jury Power, 91

Colum. L. Rev. 142, 146-56 (1991). The jury, of course,

9

must act in accord with fair procedures. But the Court

should not impose federal substantive due process

limits on the fruits of the jury’s labors based solely on

the Court’s willingness early in the last Century to

scrutinize products of state legislatures.

Finally, the legacy of that historical period

argues powerfully against embarking on a similar

campaign against punitive damage awards upheld by

state courts.

Justice White, writing for the Court in Bowers v.

Hardwick, 478 U.S. 186 (1986), warned:

The Court is most vulnerable and comes nearest to

iliegitimacy when it deals with judge-made

constitutional law having little or no cognizable

roots in the language or design of the Constitution.

That this is so was painfully demonstrated by the

face-off between the Executive and the Court in the

1930's, which resulted in the repudiation of much

of the substantive gloss that the Court had placed

on the Due Process Clauses of the Fifth and

Fourteenth Amendments. There should be,

therefore, great resistance to expand _ the

substantive reach of those Clauses .. .

Id. at 194-95. Justice White was, of course, referring to

the era named for Lochner v. New York, 198 U.S. 45

(1905). Ignoring Justice Holmes’ admonition that “the

Constitution is not intended to embody a particular

economic theory,” Id. at 75 (Holmes, J., dissenting), the

Court used substantive due process to invalidate state

economic regulations deemed by the Court as “clearly

arbitrary and unreasonable, having no substantial

relation to the public health, safety, morals, or general

welfare.” Euclid v. Ambler Realty Co., 272 U.S. 365, 395

(1926).

10

Few doctrines have been as firmly rejected by

this Court. See, e.g., Ferguson v. Skrupa, 372 U.S. 726,

730- 31 (1963) (“we emphatically refuse to go back to

the time when courts ‘used the Due Process Clause to

strike down state laws, regulatory of business or

industrial conditions, because they may be unwise,

improvident, or out of harmony with a particular

school of thought.”), quoting Williamson v. Lee Optical,

348 U.S. 483, 488 (1955). Lochner is now viewed as “one

of the most ill-starred decisions that [the Court] ever

rendered. William H. Rehnquist, THE SUPREME COURT:

How It Was, How It Is 205 (1987). In the years

following its unlamented end in West Coast Hotel Co. v.

Parish, 300 U.S. 379 (1937), the Lochner era has served as

a cautionary reminder of the wisdom of “caution and

restraint” on the part of the Court. Moore v. City of East

Cleveland, 431 U.S. 494, 503 (1977).4

The Court has most emphatically rejected any

expansionist constitutional reasoning that “would make

of the Fourteenth Amendment a font of tort law to be

superimposed upon whatever systems may already be

administered by the States.” Paul v. Davis, 424 U.S. 693,

701 (1976). The Due Process Clause, the Court has

stated, must not be used “to impose federal duties that

are analogous to those traditionally imposed by state

4 Judge Posner has written that substantive due process still “stinks

in the nostrils ot modern liberals and modern conservatives alike.”

Richard A_ l’osner, OVERCOMING LAW 179-80 (1995). Yet, he

observes, “there is a movement afoot (among scholars, not as yet

among, judges) to make the majority opinion in Lochner the

centerpiece of a new activist jurisprudence.” Richard A. Posner,

THE FEDERA! COURTS: CRISIS AND REFORM 209 n.25 (1985). See also

Michael J. Phillips, Another Look at Economic Substantive Due Process,

1987 Wis. L. Rev. 265, 266 n.7, offering notable examples o* that

“movement.”

11

tort law.” Collins v. City of Harker Heights, supra, 503 U.S.

at 128. Nor should it “supplant traditional tort law in

laying down rules of conduct to regulate liability for

injuries that attend living together in society.” Lewis,

523 US., at 848, quoting Daniels v. Williams, 474 US.

327, 332 (1986). ATLA urges this Court to reconsider its

holding in BMW in the light of its own wise advice.

The Court looks to “Our Nation's history, legal

traditions, and practices [to] provide the crucial

guideposts . . . that direct and restrain our exposition of

the Due Process Clause.” Washington v. Glucksberg, 521

U.S. 702, 721 (1997). The majority opinion in BMW leads

this Court into foreign territory — substantive control of

state court damage awards. It is an area in which the

Court acts without solid support in precedent and

historical practice and which has traditionally been

governed by state courts and legislatures.

B. Substantive Due Process Review Adds Little to

Judicial Safeguards Against Excessive Awards

Already Provided By Common Law.

The Court might well overcome its reluctance to

extend substantive due process to this field of law

historically administered by the states if, as Justice

Scalia has remarked, “it had something useful to say.”

BMW, 517 US., at 602 (Scalia, J., dissenting). ATLA

respectfully submits that review of punitive damage

awards for gross excessiveness under the substantive

component of the Due Process Clause dues not - and

cannot — add significantly to the protection against

arbitrary awards already provided by state courts.

State courts, applying the principles of the

common-law, review punitive damage verdicts for

excessiveness. Indeed, this Court has held that such

review is so rooted in the common-law tradition and so

12

important a safeguard against arbitrary and excessive

verdicts, that it is required of state courts as a matter of

procedural due process. Honda Motor Co. v. Oberg, 512

U.S. 415. 421-26 (1994).

This Court has not clearly differentiated

substantive due process excessiveness from common

law excessiveness. The Court's discussions suggest that

the two standards share common-law roots and are

roughly equivalent. The Cou eld in Haslip that the

common-law method of assessing punitive damages,

including judicial review “to ensure that it is

reasonable” compoits with due process. 499 U.S., at 15.

At the same time, the Court has steadfastly maintained

that its “constitutional calculus” is informed by a

“general concer[n] of reasonableness.” BMW, 517 US.,

at 583; TXO, 509 U.S., at 458; Haslip, 499 US., at 18. This

equivalence comports with the Court’s foundational

due process principle that “traditional practice provides

a touchstone for constitutional analysis.” Oberg, at 430,

citing Murray’s Lessee v. Hoboken Land & Improvement

Co., 18 How. 272, 15 L.Ed. 372 (1856).

However, a_ constitutional standard that

essentially duplicates state common-law review offers

little in the way of additional protection against

excessive awards, which is the Court’s apparent

objective. It merely transforms excessiveness into a

federal constitutional question and this Court into a

Court of Additional Appeals from state supreme

courts.

The argument that a federal level of review is

necessary to correct erroneous or overly deferential

application of excessiveness review by state courts is

not persuasive. This Court has long rejected the notion

that asserted errors by state courts applying state law

13

are reviewable as federal due process violations. See

Missouri Pacific Ry. Co. v. Humes, supra, 115 U.S., at 520-

21. Moreover, this Court has already made clear:

[S]tate law generally imposes a requirement that

punitive damages be “reasonable” . . . [However,]

we do not suggest that a defendant has a

substantive due process right to a correct

determination of the “reasonableness” of a punitive

damages award.

TXO, 509 U.S., at 458, n.24.

The Court has also suggested that the federal

due process standard of excessiveness might be less

stringent than the common-law standard. The plurality

in TXO stated that “violation of a state law

‘reasonableness’ requirement would not, however,

necessarily establish that the award is so ‘grossly

excessive’ as to violate the Federal Constitution.” 509

US., at 458, n.24. If that is the case, it would appear

even less likely that substantive due process review can

remedy problems of excessiveness that concern the

Court. More importantly, to enforce a federal outer

limit on punitive damage awards that is not tethered to

the common-law standard raises concerns that

substantive due process may simply mask a “gut

feeling” that a particular award is too much. As Justice

Kennedy warned:

A reviewing court employing this formulation

comes close to relying upon nothing more than its

own subjective reaction to a particular punitive

damages award in deciding whether the award

violates the Constitution. This type of review, far

from imposing meaningful, law-like restraints on

jury excess, could become as fickle as the process it

- is designed to superintend.

Id. at 466-67 (Kennedy, J., concurring in part).

14

Nor can it be argued that a federal constitutional

limit on the amount of punitive damages permits this

Court to issue more refined and specific rules to deal

with excessive awards. The Court has repeatedly

turned away entreaties to establish a categorical or

formulaic test, emphasizing that the due process clause

simply cannot provide such precision. Haslip, 499 US.,

at 18 (“We need not, and indeed we cannot, draw a

mathematical bright line between the constitutionally

acceptable and the constitutionally unacceptable that

would fit every case.”) (emphasis added); BMW, 517

US., at 582-83; TXO, 509 U.S., at 458.

This response highlights the difficulty of

employing substantive due process to regulate punitive

damage awards. Mere “platitudes,” as Justice Scalia

points out, provide no useful guidance to the state and

lower federal courts. BMW, 517 US., at 606 (Scalia, J.,

dissenting). However, the more specific and categon.cal

the limitations this Court might impose, the less they

resemble constitutionally mandated due process and

the more they simply appear to reflect the predilections

of a majority of the Court.

Finally, there would appear to be no natural

stopping place for the Court’s venture into applying

economic substantive due process to jury awards. As

the Court has noted, there are many issues entrusted to

the broad discretion of juries, including various types

of noneconomic damages, that resist mathematical

precision. See Haslip, 499 US., at 20. Opening the door

to substantive review of jury decisionmaking may well

invite disappointed state court litigants of many stripes

to seek to make the Due Process Clause “a font of tort

law to be superimposed upon . . . States.” Paul v. Davis,

424 U.S. 693, 701 (1976). It is a door which this Court

should shut.

_

owes

ee -

15

C. To The Extent The Eighth Amendment Applies

To Excessive Punitive Awards, Substantive

Due Process Is Inapplicable

This Court’s opinion in Cooper Industries, Inc., v.

Leatherman Tool Group, Inc., 532 U.S. 424 (2001), presents

an additional reason for the Court to overrule BMW.

The Court in Cooper Industries described punitive

damages as “quasi-criminal” penalties which “operate

as ‘private fines,” 532 U.S., at 432. The Court further

stated:

Despite the broad discretion that States poSsess

with respect to the imposition of criminal penalties

and punitive damages, the Due Process Clause of

the Fourteenth Amendment to the Federal

Constitution imposes substantive limits on that

discretion. That Clause makes the Eighth

Amendment's prohibition against excessive fines

and cruel and unusual punishments applicable to

the States.

Id. at 433-34. Although the matter is not free from

doubt,°, the quoted language strongly suggests that the

Court now views the Excessive Fines Clause as

applicable, through the Fourteenth Amendment, to

state court awards of punitive damages.

If the Excessive Fines Clause is now available for

defendants to challenge the excessiveness of punitive

damages, then the Eighth Amendment “provides an

explicit textual source of constitutional protection” and

5 The Court in Cooper Industries did not explicitly overrule its

holding in Browning-Ferris Industries, Inc. v. Kelco Disposal, Inc., 492

U.S. 257, 260 (1989), that the “Excessive Fines Clause does not

apply to awards of punitive damages in cases between private

parties.”

16

claims of unconstitutional government action must be

analyzed under “that Amendment, not the more

generalized notion of ‘substantive due process.

Graham v. Connor, 490 U.S. 386, 395 (1989). See also id. at

395 n.10 (convicted prisoners claiming excessive force

may not rely on substantive due process because any

protection substantive due process might afford is, “at

best redundant of that provided by the Eighth

Amendment,” citing Whitley v. Albers, 475 U.S. 312, 327

(1986)); County of Sacramento v. Lewis, 523 U.S. 833, 842-

43 (1998).

D. Substantive Due Process Intrudes Upon

Matters Of State Law And Policy Which Are

Best Left To State Courts And Legislatures.

Substantive due process review of punitive

damage awards necessarily invites this Court to

interpose its own views regarding matters of state law

and policy. The Court in BMW sought to establish due

process “guideposts” — reprehensibility, ratio, and

comparable sanctions - which might appear at first

blush to command uniform agreement. However, “their

effect is to establish federal standards

governing the hitherto exclusively state law of

damages.” BMW, 517 U.S., at 605 (Scalia, J., dissenting).

Reprehensibility, for example, beyond the broad

proposition that misconduct causing personal injury is

more blameworthy than that resulting in economic

harm, see id. at 576, masks important state policy issues.

Outrage reflects values, and is not uniformly

scaled among Americans in all parts of the nation. The

people of Utah, for example, may view drunk driving

as particularly worthy of punishment and deterrence.

See Utah Code Ann. § 78-18-1(1)(b) (exempting civil

suits involving driving while intoxicated from statutory

17

restrictions on punitive damages.) The people of West

Virginia, as was brought to this Court's attention in

TXO, view with particular outrage the fraudulent

exploitation of the state’s mineral resources. The

residents of a state with a large industrial labor force

may react with a greater degree of outrage at willful

disregard of workplace safety. Other states may assign

particular blameworthiness to fraudulent schemes that

prey on senior citizens.

State courts and legislatures bear the

responsibility of ensuring that the law reflects the

values of the state’s people. It is surely not the role of

this Court to declare, as a matter of constitutional law,

that a state takes the safety of its highways or its

workplaces overly seriously.

Although the Court's “ratio” guidepost can be

expressed mathematically, the Court emphatically

rejected the imposition of a bright-line limit. BMW, 517

U.S., at 582-83. The Court suggested that various

circumstances may warrant a relatively high ratio of

punitive to compensatory damages, such as where a

particularly egregious act results in a small economic

loss. Id. Thus this guidepost may involve the Court in

value judgments similar to reprehensibility.

The “sanctions for comparable misconduct”

guidepost presents even greater potential intrusion into

matters of state law. First, the identification of

appropriately comparable sanctions is not a mere

mechanical process. For example, where the defendant

has marketed a dangerously defective vehicle, resulting

in fatalities, should the relevant sanction be the

nominal fine provided for in the Vehicle Code or the

penalty for negligent homicide? See Romo v. Ford Motor

Co., 99 Cal. App. 4th 1115, 1159, 122 Cal.Rptr.2d 139,

18

164 (2002). Indeed, in this case, State Farm argues

strenuously to this Court that it was deprived of due

process because the Utah court erred in its

determination of the penalties provided for comparable

misconduct under the Utah Unfair Claims Practices

Act, Utah Code Ann. 31A-26-301 et seq., the Utah

Pattern of Unlawful Activity Act, Utah Code Ann. 76-

10-1602(4), and various provisions of the Utah Criminal

Code. Brief of Petitioner, at 38-41.

Second, proper evaluation of civil or criminal

sanctions under state law frequently requires

interpretation of the relevant statute. In this case, for

example, State Farm argues to this Court that the Utah

Supreme Court erred in interpreting Utah Code Ann. -

76-3-303 as authorizing imprisonment for misconduct

comparable to State Farm’s. Brief of Petitioner, at 40.

Finally, civil and criminal penalties do not exist

in isolation from punitive damages. Some states, as a

matter of policy, may rely more heavily on punitive

damage awards precisely because they are perceived as

a more effective punishment and deterrent than other

penalties. As the California Court of Appeal stated:

It is precisely because monetary penalties under

government regulations prescribing business

standards or the criminal law are so inadequate

and ineffective as deterrents against a manufacturer

and distributor of defective products that punitive

damages must be of sufficient amount to

discourage such practices.

Grimshaw « Ford Motor Co., 119 Cal. App. 3d 757, 820,

174 Cal. Kptr. 348, 389 (1981).

One need not agree with the wisdom of any of a

state’s policy choices to recognize that they are state

policies and state choices. Federal judges

le

19

countermanding those policies under the rubric of

substantive due process represents a dramatic affront

to the principles of federalism.

II. PROCEDURAL DUE PROCESS PROHIBITS COURTS

FROM EXCLUDING EVIDENCE AND REFUSING CLEAR

JURY INSTRUCTIONS ON ISSUES RELEVANT TO THE

APPROPRIATE AMOUNT OF PUNITIVE DAMAGES.

A. Proper Jury Instructions Are Key to Preventing

Arbitrary or Biased Verdicts.

Rejecting the pursuit of a chimerical substantive

due process limit need not leave defendants facing

punitive damages “run wild.” Haslip, 499 US., at 18.

This Court has already recognized that procedural

safeguards, most especially clear and_ specific

instructions to the jury regarding the proper evaluation

of the evidence and application of the factors relevant

to the amount of punitive damages, are the most

effective means of protecting against arbitrary awards.

Members of this Court have expressed concern

with the frequency and size of punitive damage

awards. See, e.g., Haslip, 499 U.S., at 61-62 (O’Connor, J.

dissenting) (“Recent years . . . have witnessed an

explosion in the frequency and size of punitive damage

awards); TXO, 50% US., at 500 (O'Connor, J.,

dissenting) (similar).

ATLA submits that, while a few awards may

raise judicial eyebrows, there is no evidence of a

widespread, dramatic increase in punitive damages.

One salutary result of this Court’s attention to punitive

damage awards has been to prompt extensive empirical

research. Professor Michael Rustad offers a detailed

overview of the results of these studies, conducted by

respected and objective researchers using a variety of

20

data sets. The results uniformly demonstrate that

punitive damages generally are awarded relatively

infrequently and tend to be modest in amount. Michael

L. Rustad, Unraveling Punitive Damages: Current Data

and Further Inquiry, 1998 Wis. L. Rev. 15 (1998).

A comprehensive summary of this empirical

research is set forth in the Brief of Amici Curiae of

Certain Leading Social Scientists and Legal Scholars.

The members of the Court who have raised

concerns regarding punitive damages have also clearly

identified the root cause: woefully unguided juries.

Punitive damage awards become suspect where juries

are told “little more than . . . to do what they think is

best” and are “left largely to themselves in making this

important, and potentially devastating, decision.”

Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal,

Inc., 492 U.S. 257, 281 (1989) (Brennan, J., concurring);

see also TXO, 509 US., at 474 (O’Connor, J., dissenting)

(noting that “the risk of prejudice, bias and caprice” in

jury decisions involving punitive awards is especially

high because “juries sometimes receive only vague and

amorphous guidance”).

The Court in Haslip recognized that jury

instructions which properly “enlightened the jury as to

the punitive damages’ nature and purpose” would

“reasonably accommodate[] [the defendant's] interest in

rational decisionmaking” as well as the state’s interest

“in meaningful individualized assessment of

appropriate deterrence and retribution.” 499 U.S., at 19-

20. As this Court has emphasized, jury instructions are

“a well established and, of course, important check

against excessive awards.” Oberg, 512 U.S., at 433.

Indeed, they are so important that a court’s failure to

give the jury appropriate instructions for assessing

21

punitive damages must be viewed as “inconsistent with

due process.” Bankers Life & Cas. Co. v. Crenshaw, 486

US. 71, 88 (1988) (O’Connor, J., concurring in part and

concurring in judgment).

Despite this Court’s emphasis in Haslip on the

importance of effective jury instruction, Justice

O’Connor has observed, “many courts continue to

provide jurors with skeletal guidance that permits the

traditional guarantor of fairness—the jury itself-—-to be

converted into a source of caprice and bias.” TXO, 509

US., at 500-01 (O’Connor, J., dissenting). Ford Motor

Co. in its amicus brief informs this Court that some

courts persist in delivering “bare-bones” and skeletal

jury instructions. Brief of Ford Motor Co. at 22-23.

(citing examples). Indeed, although ATLA disagrees

with Ford’s specific substantive complaints, ATLA

agrees with Ford’s general proposition that, as this

Court has long recognized, “proper jury instructions

are crucial” to ensure that jury verdicts are consistent

with constitutional limits on state authority.” Id. at 20.

This Court should hold that a court’s refusal to

provide instructions reasonably calculated to enable the

jury to evaluate the evidence and apply the factors

relevant to the amount of punitive damages in

accordance with state law violates procedural due

process.

Unfortunately, the Court's substantive due

process decision in BMW does little to improve the

fairness and reliability of jury decisionmaking. The

focus of the majority’s opinion is to erect due process

“guideposts” to be applied by reviewing courts in

evaluating the excessiveness of punitive awards. The

criteria and evidence the Court deems important to the

appropriate amount of punitive damages need not be

22

presented to the jury at all. For reviewing courts to set

aside jury awards on the basis of facts and factors that

were not introduced at trial does nothing to improve

the fairness of punitive damages verdicts. Rather, this

process trivializes the ideal of trial by jury.

Justice O'Connor has cut to the heart of the

matter:

By giving these factors to juries, the State would be

providing them with some specific standards to

guide their discretion. This would substantially

enhance the fairness and rationality of the State's

punitive damages system.

Haslip, 499 US., at 57 (O'Connor, J., dissenting)

(referring to factors established by Alabama court).®

This Court should hold that, as a matter of

procedural due process, litigants are entitled to present

evidence and argument relevant to any factor affecting

the appropriate amount of punitive damages. Cf.

Mattison v. Dallas Carrier Corp., 947 F.2d 95, 108 (4th Cir.

1991) (A federal court “cannot consistent with the

6 Some states expressly provide that such evidence may be

introduced. See, e.g., Ore. Rev. Stat. § 30.925(3)(g) (1991) (in

assessing punitive damages in product liability actions, the jury

may consider “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”); Tuttle v.

Raymond, 494 A.2d 1353, 1356 (Me. 1985) (defendant entitled to

present factfinder with evidence of any criminal punishment

imposed, as mitigating factor); Cheevers v. Clark, 449 S.E.2d 528 (Ga.

App. 1994) (defendant in personal injury suit seeking punitive

damages for harm caused by drunk driving permitted to read to

the jury the criminal penalties applicable if he were prosecuted);

Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 488 (Fla.

1999) (punitive awards in other cases is a proper factor for juries to

consider in deciding the amount of punitive damages to award).

23

Seventh Amendment, evaluate a jury’s verdict based on

evidence that the jury was not permitted to consider at

trial or on a legal standard not given to the jury.”). See

also, Charles Jared Knight State-Law Punitive Damage

Schemes And The Seventh Amendment Right To Jury Trial

In The Federal Courts, 14 Rev. of Litig. 657, 698-703

(1995).

B. Juries Are Competent to Render Fair Verdicts

When Properly Instructed.

Our justice system entrusts many important

decisions to ordinary Americans sitting as jurors, even

where life and liberty are at stake. See Ring v. Arizona,

122 S.Ct. 2428 (2002) (statute allowing trial judge to

determine the presence of the aggravating factors

required for imposition of the death penalty violates

the Sixth Amendment right to a jury trial); Apprendi v.

New Jersey, 530 U.S. 466 (2000) (any fact that increases —

penalty for a crime beyond the prescribed statutory

maximum must be submitted to the jury).

The Constitution values the role of the jury in

administering justice in both civil and criminal actions

and its capacity to tailor its decisions to the unique

circumstances of a case. See Edmonson v. Leesville

Concrete Co., 500 U.S. 614, 624 (1991).

As this Court stated in a capital punishment case,

the inherent lack of predictability of jury decisions

does not justify their condemnation. On the

contrary, it is the jury's function to make the

difficult and uniquely human judgments that defy

codification and that ‘build discretion, equity and

flexibility into a legal system.’

McKlesky v. Kemp, 481 U.S. 279, 331 (1987). See also

Parklane Hoisery Co. v. Shore, 439 U.S. 322, 343-44 (1979)

24

(Rehnquist, J., dissenting) (“Trial by a jury of laymen

rather than by the sovereign’s judges was important to

the founders because juries represent the layman's

common sense, the ‘passional elements in our nature,’

and thus keep the administration of law in accord with

the wishes and feelings of the community.”) (quoting

Oliver W. Holmes, COLLECTED LEGAL PAPERS 237

(1920)).

Empirical studies overwhelmingly demonstrate

the wisdom of citizen participation in the justice

system. One of the largest empirical studies of actual

jury performance, sponsored by the Roscoe Pound

Foundation, found that:

Juries overwhelmingly take their duties seriously

. . . Juries are evidence-oriented . . . with the

personalities of the participants in the trial and

other subsidiary matters only of minor concern to

them . . . Juries as a group apparently also

understand enough of the law that they are able to

arrive at legally supportable verdicts in a very large

majority of cases .. . The evidence also strongly

suggest that jurors rarely increase the size of an

award because they think the defendant has ample

insurance to cover it, nor do they ordinarily make

awards out of sympathy.

John Guinther, THE JURY IN AMERICA 102 (1988). The

study concludes that “juries are, on the whole,

remarkably adept as triers of fact. Virtually every study

of them, regardless of research method, has reached

that conclusion.” Id. at 230.

In the years since that study, a wide array of

social science research projects has examined the

performance of juries in actual trials. A survey of the

growing body of empirical findings, conducted under

the auspices of the Division of Research at the Federal

25

Judicial Center, found that “doubts about jury

competence expressed by jury critics stand in sharp

contrast to the judgments of scholars who conduct

research on jury decisionmaking.” Joe S. Cecil, Valerie

P. Hans, and Elizabeth C. Wiggins, Citizen

Comprehension of Difficult Issues: Lessons from Civil Jury

Trials, 40 Am. U. L. Rev. 728, 744-45 (1991).

Additional recent empirical studies confirm that

juries are capable of deciding cases on the basis of the

evidence, that they conscientiously follow the trial

court's instructions, and that their verdicts conform in

large measure with the results that judge’s themselves

would return.

A detailed examination of these objective

empirical studies is presented to this Court in an

amicus brief prepared by many of the researchers

themselves in the Brief of Amici Curiae of Certain

Leading Social Scientists and Legal Scholars.

Those who attack juries as “inherently” arbitrary

can point to no persuasive objective studies of real

juries. See Brief of Certain Leading Business

Corporations as Amici Curiae. That attack relies

heavily on a study, partially funded by Exxon,

involving mock-jury decisionmaking, published in Cass

R. Sunstein, Daniel Kahneman, David Schkade,

Assessing Punitive Damages (With Notes On Cognition

And Valuation In Law), 107 Yale L.J. 2071(1498).

ATLA submits that, to the extent that study

offers any useful insight, it is that clear and precise jury

instructions are needed for fair and reasonable jury

awards of punitive damages

The study gathered paid participants at a hotel

where they were given packets containing general

26

directions along with ten scenarios of about 200 words

each describing~ personal injury lawsuits against

medium and large corporations. Participants were

asked how outrageous they found the defendant's -

behavior, the level of deserved punishment on a scale

of 0 to 6, and a dollar amount of punitive damages they

would award. Id. at 2095. Most participants completed

their questionnaires in 30 to 45 minutes. Id. at 2146.

The results showed that participants were in

close agreement with respect to the degree of

outrageousness of the misconduct and the scaled level

of punishment deserved. Id. at 2097-98. The dollar

amounts participants would award as _ punitive

damages, however, varied greatly. Id. at 2099-2100.

Based on these results, the researchers

recommended that the responsibility of assessing the

amount of damages be taken out of the hands of juries

in cases involving punitive damages, pain and

suffering, libel, sexual harassment and other civil rights

violations, intentional infliction of emotional distress,

administrative penalties, and contingent valuation. Id.

at 2074. Judges, the researchers stated, were also unable

to map a consistent dollar amount to particular

misconduct. Id. at 2127. Instead, the researchers

recommended that this determination be made by

“technocratic” experts. Id. at 2079.

In ATLA’s view, the study most powerfully

demonstrates what this Court already observed: that

unlimited jury discretion and inadequate guidance

from the court “may invite extreme results.” Haslip, 499

US., at 18; see also TXO, 509 US., at 475 (O’Connor, J.,

dissenting) (“it cannot be denied that the lack of clear

guidance heightens the risk that arbitrariness, passion,

or bias will replace dispassionate deliberation as the

SE

27

basis for the jury’s verdict.”). Certainly the performance

of test participants asked to make snap decisions based

on minimal information, without evidence and

argument from both sides, and without detailed jury

instructions as to the appropriate factors for assessing

punitive damages, bears this out.

Additionally, the study offers no support for the

proposition that arbitrariness of awards can be

addressed by requiring appellate judges to determine

excessiveness as a matter of substantive due process.

The researchers themselves point out that:

Judges are not likely to be able to capture the

community's sentiments with respect to either

dollar awards or punitive intent. . . . The most

important point is that judges too are likely to have

difficulty in mapping normative judgments onto

dollar amounts, and while judicial judgments may

reduce variance, there is likely to be a continuing

problem of erratic judgments or the use of anchors

that introduce arbitrariness of their own.

Id. at 2127-28.

At the very heart of the attacks on juries, and

implicit in the notion that judges must be armed with

substantive due process authority to override jury

verdicts, there lies a myth: The lawless jury. Two

centuries of jurisprudence and extensive recent

empirical research flatly contradict this dark and

cynical portrait of Americans who take their place in

the jury box. The myth is wrong. Due process of law

finds no higher expression than in an informed and

independent civil jury.

28

CONCLUSION

For the above reasons, the decision of the court of

appeals should be affirmed.

Respectfully submitted,

Jeffrey Robert White

1050 31st St., N.W.

Washington, DC 20007

(202) 965-3500

ATLA Senior Amicus Counsel

Counsel of Record

October 17, 2002